UNIVERSITY  OF  CAUFORNIA 
AT  LOS  ANGELES 


UMVERSITY  of  CALIFORNIA 

AT 

LOS  ANGELES 

LIBRARy 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/casesonpublicserOOwymaiala 


CASES 


ON 


PUBLIC    SERVICE    COMPANIES 

PUBLIC  CARRIERS,  PUBLIC  WORKS,  AND 
OTHER  PUBLIC  UTILITIES 

Third  Edition 


BY 

BRUCE    WYMAN 

SOMETIME   PROFESSOR   OF   LAW   IN   HARVARD    UNIVERSITY 


CAMBRIDGE 

HARVARD  UNIVERSITY  PRESS 

1920 

*  /   ''    /  '/•  J'.':  '     '     »'     '•   '    »'••  I'',    '•''  'i' 

153039 


Copyright,  1902 
Br  Joseph  Henrt  B&al£,  Jr. 

Copyright,  1909 
By  Bbuce  Wyman 

Copyright  1909 
Bt  Joseph  Henbt  Bi:ale 

Copyright,  1919 
By  Joseph  Henbt  Be.\le 

Copyright,  IGSO 
By  Bruce  Wyman 


In/9^0^^ 

/3V.0 


,  *  * .'  »••  •*.  •••  •    •  •  •*•  ••« .».    ,  ,  • 


This  collection  of  cases  is  designed  to  show  the  development 

of  the  law  of  public  service  in  its  most  modern  forms :  the  public 

O  carriers,  the  public  works,  and  the  other  public  utilities.     The 

Of) 

'  distinction  between  the  private  callings  —  the  rule  —  and   the 
•  public  callings  —  the  exception  —  is  a  striking  feature  of  the  law 
~"  governing  business  relations  as  it  is  to-day.     The  causes  of  the 
c  3  division  are  economic  rather  than  strictly  legal.    Free  competition, 
the  very  basis  of  the   modern  social   organization,    superseded 
I  almost  completely  medieval  restrictions,  but  it  has  just  come  to 
/^  be  recognized  that  the  process  of  free  competition  fails  in  some 
o  cases   to   secure  the  public  good,  and  it  has   been  reluctantly 
—  admitted  that  some  control  is  necessary  over  such  lines  of  indus- 
t^try  as  are  affected  with  a  public  interest.      At  this  point  the 
f  problem  of  public  callings  becomes  a  legal  one. 
c     No  one  can  carefully  study  the   authorities  on  this   subject 
cu  without  feeling  that  we  are  just  entering  upon  a  great  and  impor- 
J2tant  development  of  the  common  law.    What  branches  of  industry 
f>will  eventually  be  of  such  public  importance  as  to  be  included  in 
the  category  of  public  callings,  and  to  what  extent  the  control  of 
the  courts  will  be  carried  in  the  effort  to  solve  by  law  the  modem 
economic  problems,   it   would  be   rash   to   predict     Enormous 
business  combinations,  virtual  monopolization  of  the  necessaries 
of  life,  the  strife  of  labor  and  capital,  now  the  concern  of  the 
economist  and  the  statesman,  may  prove  susceptible  of  legal  con- 
trol through  the  doctrines  of  the  law  of  public  callings.     These 
doctrines  are  not  yet  clearly  defined.     General  rules,  to  be  sure, 


IV  PREFACE. 

have  been  established,  but  details  have  not  been  worked  out  by 
the  courts ;  and  upon  the  successful  working  out  of  these  details 
depends  to  a  large  extent  the  future  economic  organization  of  the 
country.  Only  if  the  courts  can  adequately  control  the  public 
service  companies  in  all  contingencies  may  the  business  of  these 
companies  be  left  in  private  hands. 

As  a  result  of  the  present  state  of  the  law  it  has  seemed  essen- 
tial to  bring  together  examples  of  every  sort  of  public  calling. 
Here  will  be  found  decisions  concerning  coaches  and  ships,  the 
turnpike  and  the  toll-bridge,  the  railway  and  the  tram,  the  inn 
and  the  warehouse,  the  telegraph  and  the  telephone,  the  purvey- 
ors of  light  and  water.  Materials  are  thus  provided  for  analogy 
and  comparison,  and  for  a  careful  study  of  the  rights  and  duties 
of  persons  engaged  in  every  sort  of  public  employment. 

When  this  preface  was  first  written  in  1902  this  unity  of  the 
public  service  law  had  not  been  generally  perceived ;  now  it  is  a 
recognized  branch  of  the  law,  recognized  by  all  as  of  overshadow- 
ing importance.  An  impressive  instance  of  this  growth  in  the 
law  is  the  number  of  fundamental  cases  which  the  last  few  years 
have  produced  that  have  been  added  to  this  new  edition. 

This  collection  is  intended  primarily  for  use  as  a  basis  for  class 
discussion  in  a  law  school,  and  the  choice  and  arrangement  of 
cases  have  been  directed  to  that  end.  Cases  have  been  abridged 
with  freedom,  but  the  fact  has  always  been  indicated.  The  anno- 
tation is  not  exhaustive,  but  is  intended  to  draw  the  attention  of 
students  to  a  variety  of  cases,  valuable  for  purposes  of  study, 
which  bear  upon  the  subjects  discussed  in  the  text.  The  subdi- 
visions are  kept  few  and  general  so  as  to  leave  the  student  to 
formulate  the  law  for  himself  without  the  interference  of  the 
editor. 

B.  W. 


TABLE  OF  COT^TENTS 


CHAPTER  I 

Paos 

Nature  of  Public  Calling , 1 


CHAPTER  II 
Extent  of  Public  Profession 75 

CHAFfER  III 
Obligations  of  Public  Duty 128 

CHAPTER  IV 
Excuses  for  Refusing  Service 220 

CHAPTER  V 
Provision  of  Adequate  Facilities 279 

CHAPTER  VI 
Regulation  of  the  Service •#•..    344 

CHAPTER  VII 
Determination  of  Reasonable  Rates 411 

CHAPTER  Vin 
Prohibition  of  Unjust  Discrimination 483 


TABLE  OF  CASES. 


A 

Page 

Allen  V.  Sackrider 78 

Allnutt  V.  Inglis 2 

Anonymous 102 

113 

1 

Atchison  T.  &  S.  F.  Ry.  v.  D.  & 

N.  O.  R.  R 201 

Atlantic  City  v.  Fonsler   ....  81 
Atlantic  C.  L.  R.  R.  Co.  v.  No.  C. 

C.  C 297 

V.Florida 432 

Atwater  v.  Sawyer 233 

Ayres  v.  Chicago  &  N.  Ry.      .    .  299 

B 

Bailey  v.  Fayette  Gas-Fuel  Co.  .  545 

Ballentine  v.  No.  Mo.  R.  R.  Co.  298 

Barrett  v.  Market  St.  Ry.    .    .    .  413 

Bennett  v.  Dutton 197 

Billings  M.  &  T.  Co.  v.  Rocky 

Mt.  T.  Co 272 

Birmingham  Water  Co.  v.  Bir- 
mingham       Ill 

Blumenthal  v.  Southern  Ry.  Co.  241 
Bradshaw  v.  South  Boston  R.  R. 

Co 371 

Brass  v.  North  Dakota 61 

Breddon  v.  Great  Northern  Ry. 

Co.  . 285 

Bridal  Veil  L.  Co.  v.  Johnson     .  91 

Brown  v.  Memphis  &  C.  R.  R.   .  230 

V.  Western  U.  Tel.  Co.    .    .  393 

Browne  v.  Brandt      281 

Brymer  v.  Butler  Water  Co.    .    .  449 

Buckland  v.  Adams  Exp.  Co.  .    .  183 

Bush  Electric  Co.  v.  Subway  Co.  17 

Bussey  v.  Mississippi  V.  T.  Co.  180 


Canada  So.  Ry.  Co.  v.  Bridge  Co.  434 

Central  E.  Co.  v.  People  ....  275 
Chesapeake  &  P.  T.  Co.  v.  B.  &  O. 

T.  Co 261 

Chicago  &  N.  Ry.  v.  People    .    .  319 

V.  Williams 227 

Chicago  B.  &  Q.  R.  Co.  v.  Guatin  405 


Page 
Chicago,  M.  &  St.  P.  Ry.  p.  War 

bashRy 267 

Cincinnati  &  H.  Ry.  v.  Bowhng 

Green 27 

Cincinnati,  N.  O.  &  T.  P.  R.  R. 

y.  Interstate  Commerce  Com.  557 
Citizens  Bank  v.  Nantucket  S.  B. 

Co 177 

City  of  Mobile  v.  Bienville  .  .  550 
Commonwealth  v.  Delaware  &  H. 

Co 538 

Concord  &  M.  Ry.  v.  B.  &  M. 

Ry 315 

Connors  v.  Cunard  SS.  Co.      .    .  242 

Cotting  V.  Goddard 435 

Coup  V.  Wabash  St.  L.  &  P.  Ry.  107 
Covington   Stock- Yards    Co.    v, 

Keith 335 

Cross  V.  Andrews 128 

Crouch  V.  Amett 119 

Cumberland  Tel.  &  Tel.  Co.  v. 

Brown 188 

v.  Kelley 289 

D 

Daniel  v.  New  Jersey  St.  Ry.  Co.  357 

Dickerman  v.  St.  Paul  D.  Co..    .  359 

Dittmar  v.  New  Braunfels   .    .    .  521 

Doyle  V.  Walker 280 

Dunn  V.   Western  Union  Tele- 
graph Co 34 

E 

East  0.  St.  Ry.  Co.  v.  Godola    .  11 

Evergreen  C.  Assn.  v.  Beecher    .  12 

Express  Cases 160 

F 

Farley  v.  Lavary 117 

Farnsworth  v.  Groot 285 

Faucher  v.  Wilson 85 

Fay  V.  Pacific  I.  Co 86 

FeU  V.  Knight 279 

Ferguson  v.  Metro.  G.  L.  Co.      .  140 

Fitchburg  R.  R.  v.  G^e  ....  483 

Fleming  v.  Montgomery  L.  Co.  .  134 

Forsee  v.  Alabama  Gt.  So.  Ry.   .  366 


vm 


TABLE  OF  CASES. 


Frazier  &  Cooper  v.  K.  C.  Ry. 

V.    N.    Y.    N.    H.    A    H. 

R.  R 

Fuller  V.  Coats 

Funderburg  v.  Augusta  &  A.  Ry. 


Pace 
145 

219 
351 
411 


G 

Gardner  v.  Providence  Tel.  Co.  .  282 

German  A.  Ins.  Co.  v.  Kansas    .  73 

Gibson  v.  Silva 82 

Gisbron  v.  Hurst      75 

Gloucester  Water  Co.  v.  Glou- 
cester    447 

Godwin  v.  Carolina  f.  A.  T.  Co.  234 

Goodridge  v.  Union  Pac.  Ry.  Co.  494 

Gordon  v.  Hutchinson 76 

Gould  V.  Edison  Electric  Co.   .    .  424 

Griffin  i;.  Goldsboro  Water  Co.  .  536 

H 

Harrison  v.  Knoxville  Water  Co.  388 

Hart  V.  Southern  Ry.  Co.     .    .    .  360 

Haugen  i^.  Albina  L.  &  W.  Co.    .  95 

Hays  V.  The  Pennsylvania  Co.    .  499 

Hoover  v.  Pennsylvania  R.  R.  Co.  543 
Houston  &   T.   C.   Ry.   Co.   v. 

Storey      457 

Houston,  E.  &  W.  Tex.  R.  R.  v. 

U.  S 610 

Howth  V.  Franklin    ......  89 

Hurley,  Administrator  v.  Edding- 

field 72 

I 

Illinois  Cent.  R.  R.  v.  Interstate 

Commerce  Comm 455 

Ilwaco  R.  &  N.  Co.  v.  Or^on 

Short  L.  &  U.  N.  Ry 211 

Ingate  v.  Christie 80 

Intcrmountain  Rate  Case    .    .    .  614 
Inter-Ocean   Pub.   Co.  v.  Asso- 
ciated Press 41 

Interstate  Commerce  Comm.  v. 

Alabama  M.  Ry 595 

r.B.&O.  R.R 525 

r.  Chicago  C.  W.  Ry.    ...  441 

V.  Delaware,   L.  &  W.  Ry. 

Co 432 

V.  Detroit,  G.  H.  Ry.  .    .    .  593 


Jackson  v.  Rogers      2 

Jencks  v.  Coleman 220 

Joest  V.  Packet  Co 218 

Johnson  v.  Dominion  Express  Co.  274 

V.  Midland  Ry.  Co 103 

Jones  V.  Newport  N.  &  M.  V.  Co.  317 
V.  North  G.  E.  Co 30 


Page 

Kansas  City  So.  Ry.  v.  U.  S.  .   .  443 
Kansas  Pac.  R.  R.  Co.  v.  Nichols, 

K.  &Co 105 

Kates  V.  Atlanta  B.  &  C.  Co.      .  173 

Kennebec  Water  Co.  v.  Waterville  479 

King  V.  Luelin 128 

Knoxville  v.  Knoxville  W.  Co.    .  481 


L 

Ladd  V.  Boston 547 

Lamond  v.  Gordon  Hotels   .    .    .  131 
Lawrence  v.  Pullman  Palace  Car 

Co 143 

Lecors  v.  New  York  Sleeping  Car 

Co 187 

Levi  V.  Lyim  &  Boston  R.  R.  Co.  106 
Little  R.  &  M.  R.  R.  v.  St.  L.  S. 

W.  Ry 213 

Long  Branch  v.  Tintem  W.  Co.    .  456 

Los  Angeles  Switching  Case     .    .  332 

Lough  V.  Outerbridge 511 

Louisville  &  N.  R.  R.  Co.  v.  Cen- 
tral Stock  Yards  Co 328 

Louisville,  C.  &  C.  Ry.  v.  Chap- 
pell  9 

Louisville  Gas  Co.  v.  Dulaney  .    .  422 

Lumbard  v.  Steams 4 


M 

Majestic  C.&C.  Co.  t>.  111.  C.Ry.  295 
Mays  V.  Seaboard  Air  Line  Ry.  .  329 
McDuffee  v.  Portland  &  Roch- 
ester R.  R 153 

Meancho  v.  Ward      503 

Messenger  v.  Pennsylvania  R.  R, 

Co 486 

Metropolitan  Trust  Co.  v.  Hous- 
ton, etc.  R.  R 467 

Michigan    Cent.    R.  R.  Co.    v. 

Michigan  Commission  ....  341 

V.  Pere  Marquette  R.  R.  Co.  271 

Milwaukee  El.  Ry.  etc.  Co.  v.  Mil- 
waukee      459 

Minneapolis  v.  St.  Louis  R.  R. 

Co 477 

Minnesota  Rate  Cases     ....  446 

Mobile  &  O.  R.  R.  v.  People   .    .  306 

Montgomery  v.  Buffalo  Ry.  Co.  356 

Munn  V.  Illmois 44 


N 

Narin  r.  Kentucky  H.  Co.   .    .    .  240 

News  Publishing  Co.  w.  So.  Ry.  114 

Nicholson  v.  N.  Y.  City  Ry.  Co.  137 

Nolton  V.  Western  Corp.      .    .    .  191 

Northern  P.  R.  R.  v.  Washington  307 


TABLE  OP  CASES. 


IX 


Page 
Ocean  S.S.Co.v. Savannah L. Wks.  608 

Ohage  V.  No.  Pac.  Ry 408 

Old  Colony  R.  R.  v.  Tripp  ...  169 
Owens  V.  Macon  &  B.  R.  R.  Co.  239 
Owensboro  Gas  Co.    v.    Hilder- 

brand 382 

Ozark  BeU  T.  Co.  v.  Springfield       478 


P 

Paterson  Gas  Co.  v.  Brady  ...  6 

Pearson  v.  Duane 226 

Pennington  v.  Philadelphia  Ry.  .  379 
Pennsylvania  C.  Co.  v.  Canal  Co.  344 
Pennsylvania  R.  R.  Co.  v.  Phila- 
delphia County 480 

V.  Shaft  Co 331 

People  V.  Budd 51 

V.  Chicago  &  A.  R.  R..    .    .  302 

ex  rel.  v.  Hudson  R.  Tel.  Co.  257 

V.  Manhattan  Gas  Light  Co.  373 

V.  New  York  C.R.R..    .    .  248 

Philadelphia  W.  &  B.  R.  R.  v. 

Rice 369 

PhiUips  V.  Southern  Railway  .    .  407 

Phipps  V.  L.  &  N.  W.  Ry.    .   .    .  553 

Pipe  Line  Cases 74 

Piatt  V.  Lecocq 348 

Pope  V.  Hall 350 

Portland  N.  Gas  &  O.  Co.  v.  State  254 
Public  S.  Corp.  v.  American  L.  Co. 135 

Pullman  Co.  v.  Krauss     ....  236 


R 

Ralston  Assn.  v.  Bush      ....  330 

RatcUff  V.  Wichita  Stockyards  Co.  67 

Reasor  v.  Ferry  Co. 243 

Reese  v.  Pennsylvania  R.  R.   .    .  362 

Regins  v.  Sprague      232 

Rex  V.  Ivens 129 

Robertson  &  Co.  v.  Kennedy  .    .  84 

Robinson  v.  B.  &  O.  R.  R.  Co.   .  147 

Root  V.  Long  Island  R.  R.  .   .    .  508 


S 

St.  Louis,  I.^M.  &  S.  Ry.  v.  Ren- 

froe 292 

Sammons  v.  Kearney  P.  &  I.  Co.  25 

Savannah  &  O.  C.  Co.  v.  Shuman  121 

Searles  v.  Mann  B.  C.  Co.    .    .    .  283 

Sears  v.  Eastern  R.  R 401 

Seasongood  v.  Tenn.  &  Ohio  Co.  196 

Seaver  v.  Bradley 190 

Self  V.  Dun  &  Brown 83 

Shepard  v.  Gold  Stock  &  Tel.  Co.  40 


Page 

Silkman  v.  Water  Commissioners  492 

Slosser  v.  Salt  River  V.  C.  Co.    .  98 

Smith  t;.  Capital  Gas  Co 430 

Smyth  V.  Ames 470 

Snell  V.  CUnton  Power  Co.  .    .    .  427 

ex  rel.  v.  Benson 112 

State  ex  rel.  v.  Butte  City  W.  Co.  136 

V.  Campbell 377 

exrel.t;.C.B.&Q.Ry.     .    .  293 

V.  Cincinnati,  New  Orleans, 

etc.  Ry 633 

ex  rel.  v.  Citizens'  Telephone 

Co 36 

ex  rel.  v.  Consumers  G.  T.  Co.  244 

ex  rel.  v.  Dodge  City  Ry.    .  123 

V.  Edwards 21 

ex  rel.  v.  Gas  Co 264 

V.  Jacksonville  Terminal  Co.    69 

V.  Nebraska  Tel.  Co..  ...  374 

ex  rel.  v.  Sedalia  Co.    ...  383 

ex  rel.  v.  Texas  R.  R.      .    .  549 

Steenerson  v.  Great  Northern  Ry.  453 

T 

Tap  Line  Cases 333 

Texas   &   P.   Ry.   v.   Interstate 

Commerce  Comm 564 

Tierney  v.   N.  Y.  C.  &  H.  R. 

R.  R 287 

Toledo,  A.  A.  &  N.  M.  Ry.  Co. 

V.  Pennsylvania  Co 251 

3 18  H  Tons  of  Coal 495 

Transportation  Co.  v.  Standard 

Oil  Co 71 

Tunnel  &  S.  v.  Pettijohn  ...  104 
Turner  v.  North  CaroUna  R.  R. 

Co 225 


U 

United  States  v.  American  W.  W. 

Co 270 

v.  B.  &0.  R.  R 614 

V.  Chicago  &  A.  Ry.  Co. .    .  518 

ex  rel.  v.  Delaware  &  H.  R. 

R.  Co 277 

ex  rel.  v.  Vinon  Stock  Yards  612 


Van  Dyke  v.  Arizona 127 

Virginia     Ry.     &     P.     Co.     v. 
OTlaherty 410 


W 

Watauga  W.  Co.  v.  Wolfe    ...  386 

Weld  V.  Gas  &  E.  L.  Comm.    .    .  125 
Western  Union  Tel.  Co.  v.  Call 

Publishing  Co 493 


TABLE  OF  CASES. 


Page 

Weetem  Union  Tel.  Co.  v.  Doeier  144 

V.  Frotler 116 

V.  McGuire 381 

V.  Neel 397 

Weymouth  v.  lyog  Driving  Co.    .  13 

Wheeler  v.  No.  Colo.  Irr.  Co.      .  417 


Willcox  V.  Consolidated  Gas  Co. 
Williams  v.  Mutual  Gas  Co.    . 


Z 


Page 
457 
415 


Wight  V.  United  States     ....     591   Zachery  v.  Mobile  &  O.  R.  R.  Co.      238 


CASES  ON   PUBLIC  SERYICE  COMPANIES, 


CHAPTER   I. 

NATURE   OF   PUBLIC   CALLING. 


ANONYMOUS. 
Common  Pleas,  1441. 

[Y.B.  19  H.  VI.  49,  pi.  5.] 

Writ  of  Trespass  on  the  case  against  one  R.,  a  horse  doctor,  to  the 
effect  that  the  defendant  assumed  to  him  at  London  to  cure  his  horse 
of  a  certain  trouble,  and  that  he  then  so  negligent!}'  and  carelessly  gave 
the  medicines,  etc.,  that  the  horse,  etc.  .  .  . 

Paston,  J.  You  have  not  shown  that  he  is  common  surgeon  to 
cure  such  horses,  and,  therefore,  although  he  has  killed  your  horse 
by  his  medicines  you  shall  have  no  action  against  him  without  an 
assumpsit. 


ANONYMOUS. 
King's  Bench,  1450. 

[Keilway,  50,  pi.  4.] 

Note,  That  it  was  agreed  by  the  court,  that  where  a  smith  declines  to 
shoe  my  horse,  or  an  innkeeper  refuses  to  give  me  entertainment  at  his 
inn,  I  shall  have  an  action  on  the  case,  notwithstanding  no  act  is  done ; 
for  it  does  not  sound  in  covenant.  .  .  .  Note,  That  in  this  case  a  man 
shall  have  no  action  against  innkeeper,  but  shall  make  complaint  to  the 
ruler,  by  5  Ed.  IV.  2 ;  cofitra,  14  Hen.  VU.  22. 


ALLNUTT  V.  INGLIS. 


JACKSON  V.  ROGERS. 
King's  Bench,  1683. 

[2  Shower,  327.] 

Action  on  the  case,  for  that  whereas  the  defendant  is  a  common  car- 
rier from  London  to  Lymmington  et  abinde  retrorsum^  and  setting  it 
forth  as  the  custom  of  P^ngland,  that  he  is  bound  to  carrj'  goods,  and 
that  the  plaintiff  brought  him  such  a  pack,  he  refused  to  can-y  them, 
though  offered  his  hire. 

And  held  by  Jefferies,  C.  J.,  that  the  action  is  maintainable,  as  well 
as  it  is  against  an  innkeeper^ for  refusing  a  guest,  or  a  smith  on  the  road 
who  refuses  to  shoe  mj'  horse,  being  tendered  satisfaction  for  the  same. 

Note,  That  it  was  alleged  and  proved  that  he  had  convenience  to 
carry  the  same ;  and  the  plaintiff  had  a  verdict. 


ALLNUTT  V.  INGLIS. 
King's  Bench,  1810. 

[12  East,  527.] 

Lord  Ellenborough,  C.  J.'  The  question  on  this  record  is  whether 
the  London  Dock  Company  have  a  right  to  insist  upon  receiving  wines 
into  their  warehouses  for  a  hire  and  reward  arbitrary  and  at  their  will 
and  pleasure,  or  whether  they  were  bound  to  receive  them  there  for  a 
reasonable  reward  onh'.  There  is  no  doubt  that  the  general  principle 
is  favored  both  in  law  and  justice,  that  every  man  may  fix  what  price  he 
pleases  upon  his  own  property-  or  the  use  of  it :  but  if,  for  a  particular 
purpose,  the  public  have  a  right  to  resort  to  his  premises  and  make  use 
of  them,  and  he  have  a  monopol}'  in  them  for  that  purpose,  if  he  will 

*  "  Because  he  has  made  profession  of  a  trade  which  is  for  the  public  good,  and  has 
thereby  exposed  and  vested  an  interest  of  himself  in  all  the  king's  subjects  that  will  em- 
ploy him  in  the  way  of  his  trade."     Hoi.t,  C.  J.,  in  Lane  v.  Cotton,  12  Mod.  484.  —  Eu 

*  This  opinion  only  is  given  ;  it  sufficiently  states  the  case.  —  Ed. 


ALLNUTT   V.    INGLIS.  3 

'take  the  benefit  of  that  monopoly,  he  must  as  an  equivalent  perform  the 
duty  attached  to  it  on  reasonable  terms.  The  question  then  is,  whether 
circumstanced  as  this  company  is  by  the  combination  of  the  warehous- 
ing act  with  the  act  by  which  they  were  originally  constituted,  and  with 
the  actually  existing  state  of  things  in  the  port  of  London,  whereby  they 
alone  have  the  warehousing  of  these  wines,  they  be  not,  according  to 
the  doctrine  of  Lord  Hale,  obliged  to  limit  themselves  to  a  reasonable 
compensation  for  such  warehousing?  And  according  to  him,  wherever 
the  accident  of  time  casts  upon  a  party  the  benefit  of  having  a  legal 
monopol}'  of  landing  goods  in  a  public  port,  as  where  he  is  the  owner 
of  the  only  wharf  authorized  to  receive  goods  which  happens  to  be 
built  in  a  port  newly  erected,  he  is  confined  to  take  reasonable  com- 
pensation only  for  the  use  of  the  wharf.  Lord  Hale  puts  the  case  either 
way ;  where  the  king  or  a  subject  have  a  public  wharf  to  which  all 
persons  must  come  who  come  to  that  port  to  unlade  their  goods,  either 
"  because  they  are  the  wharfs  onl}'  licensed  bj'  the  queen,  or  because 
there  is  no  other  wharf  in  that  port,  as  it  may  fall  out :  in  that  case 
(he  says)  there  cannot  be  taken  arbitrary  and  excessive  duties  for 
cranage,  wharfage,  &c. :  neither  can  they  be  enhanced  to  an  immoderate 
rate ;  but  the  duties  must  be  reasonable  and  moderate,  though  settled 
b}'  the  king's  license  or  charter."  And  then  he  assigns  this  reason,  "for  • 
now  the  wharf  and  cr§j^^;5nd^ti£r-^nv^nienjcea_aEe3flSei2ted  a  x/ 

■public  interest,  and  they  cease  to  be  juris  privati  only."  Then  were  the 
company's  warehouses  juris  privati  only  at  this  time?  The  legislature 
had  said  that  these  goods  should  onl}-  be  warehoused  there  ;  and  the  act 
was  passed  not  merelj-  for  the  benefit  of  the  company*,  but  for  the  good 
of  trade.  The  first  clause  (43  G.  3,  c.  132,  the  general  warehousing 
act)  says  that  it  would  greatly  tend  to  the  encouragement  of  the  trade 
and  commerce  of  G.  B. ,  and  to  the  accommodation  of  merchants  and 
others,  if  certain  goods  were  permitted  to  be  entered  and  landed  and 
secured  in  the  port  of  London  without  payment  of  duties  at  the  time 
of  the  first  entry  :  and  then  it  says  that  it  shall  be  lawful  for  the  im- 
porter of  certain  goods  enumerated  in  table  A.  to  secure  the  same  in 
the  West  India  dock  warehouses  :  and  then  by  s.  2  other  goods  enumer- 
ated in  table  B.  may  in  like  manner  be  secured  in  the  London  dock 
warehouses.  And  there  are  no  other  places  at  present  lawfully  author- 
ized for  the  warehousing  of  wines  (such  as  were  imported  in  this  case) 
except  these  warehouses  within  the  London  dock  premises,  or  such 
others  as  are  in  the  hands  of  this  compan}'.  But  if  those  other  ware- 
houses were  licensed  in  other  hands,  it  would  not  cease  to  be  a  monopoly 
of  the  privilege  of  bonding  there,  if  the  right  of  the  public  were  still 
narrowed  and  restricted  to  bond  their  goods  in  those  particular  ware- 
houses, though  they  might  be  in  the  hands  of  one  or  two  others  besides 
the  company's.  Here  then  the  company's  warehouses  were  invested 
witlLlhe  monoxjolj^of  a  public  privilege,  and  therefore  they  must  by  law 
confine  themselves  to  take  reasonable  rates  for  the  use  of  them  for  that 
purpose.  If  the  crown  should  hereafter  think  it  advisable  to  extend 
the  privilege  more  generally  to  other  persons  and  places,  so  far  as  that 


4  LUMBAKD   V.   STEABNS. 

the  public  will  not  be  restrained  from  exercising  a  choice  of  ware-* 
houses  for  the  purpose,  the  company  may  be  enfranchised  from  the  re- 
striction which  attaches  upon  a  monopoly:  but  at  present,  while  the 
public  are  so  restricted  to  warehouse  their  goods  with  them  for  the 
purpose  of  bonding,  they  must  submit  to  that  restriction ;  and  it  is 
enough  tiiat  there  exists  in  the  place  and  for  the  commodity  in  question 
a  virtual  monopoly'  of  the  warehousing  for  this  purpose,  on  wliich  the 
principle  of  law  attaches,  as  laid  down  b}-  Lord  Hale  in  the  passage 
referred  to,  which  includes  tlie  good  sense  as  well  as  the  law  of  the 
subject.  Whether  the  company  be  bound  to  continue  to  apply  their 
warehouses  to  this  purpose  may  be  a  nice  question,  and  I  will  not  say 
to  what  extent  it  may  go ;  but  as  long  as  their  warehouses  are  the  only 
places  which  can  be  resorted  to  for  this  purpose,  they  are  bound  to  let 
the  trade  have  the  use  of  them  for  a  reasonable  hire  and  reward.* 


LUMBARD  V.  STEARNS. 

Supreme  Court  of  Massachusetts,  1849. 

[4  Cush.  60.] 

Shaw,  C.  J.  This  bill  was  originally  brought  by  the  plaintiff  as  an 
owner  of  mills  on  the  lower  part  of  Town  brook,  in  Springfield,  against 
the  defendant  Stearns,  alleging  that  b\'  means  of  an  aqueduct,  on  his 
own  land,  he  had  diverted  some  portion  of  the  water  of  two  springs, 
being  some  of  the  sources  of  said  brook,  and  thereby  diminished  the 
plaintiffs  water  power.  Whilst  this  bill  was  pending  and  before  answer 
filed,  an  act  was  passed  by  the  legislature  on  the  10th  of  Ma}-,  1848, 
(St.  1848,  c.  303,)  entitled  "An  act  to  incorporate  the  Springfield 
Aqueduct  Company." 

This  act  authorized  the  taking  of  the  springs  before  mentioned  of 
Stearns,  b}'  purchase,  and  with  certain  other  springs,  the  laying  of  an 
aqueduct  for  the  purpose,  expressed  in  the  act,  of  supplying  the  village 
of  Springfield  with  pure  water.  The  act  contains  the  provisions  usual 
in  such  acts,  for  forming  a  company  and  raising  a  capital ;  for  taking 
springs  and  lands,  paying  all  damages ;  for  digging  up  roads  and  ways ; 
providing  hydrants  ;  for  a  gratuitous  supply  of  water,  in  case  of  fire  ;  a 
penalty  for  corrupting  the  water;  and  vesting  certain  superintending 
powers  in  the  board  of  health  of  Springfield,  and  the  county  commis- 
sioners of  Hampden,  respectively.     After  the  passage  of  this  act,  a 

1  Obosb,  Lb  Blanc,  and  Batlkt,  JJ.,  delivered  concnrring  opinions.  —  Eik 


LUMBARD   V.   STEARNS.  5 

supplemental  bill  was  filed,  making  the  aqueduct  company  a  part}',  and 
insisting  ou  the  same  grounds  against  them,  as  stated  in  the  original 
bill. 

It  is  contended  that  this  act  is  unconstitutional  and  void,  because  it 
in  effect  authorizes  the  corporation  to  take  private  rights  of  property 
for  a  use  which  is  not  a  public  one,  and,  therefore,  not  within  the  au- 
thorit}'  of  the  legislature,  even  though  provision  is  therein  made  for  a 
compensation  for  any  such  damage.  It  ma}'  be  very  questionable, 
whether  the  plaintiff,  taking  the  use  of  the  brook  for  a  mill  power,  does 
not  take  it  subject  to  the  reasonable  use  of  all  proprietors  above,  in 
or  near  whose  premises  it  passes,  for  domestic  purposes,  for  such  ordi- 
nary trades  as  require  the  use  of  water,  such  as  tanning,  bleaching, 
dyeing,  and  the  like,  and  also  for  the  extinguishment  of  fires.  If  such 
be  the  right  of  the  inhabitants  to  the  use  of  the  water,  it  may  be  a 
question,  whether  it  is  a  greater  encroachment  on  the  plaintiff's  rights, 
to  take  water  b}'  conduits  and  hydrants,  than  by  buckets  and  engines. 
But  as  this  right  ma}'  involve  a  question  of  fact,  which  this  case  has  not 
reached,  in  its  present  stage,  we  lay  no  stress  on  this  consideration, 
but  merely  suggest  it  in  passing. 

But  we  can  perceive  no  ground,  on  which  to  sustain  the  argument, 
that  this  act  does  not  declare  a  public  use-  It  is  so  expressed  in  its 
title,  and  in  the  first  enacting  clause,  and  the  entire  act  is  conformable 
to  this  view.  The  supply  of  a  large  number  of  inhabitants  with  pure 
water  is  a  public  purpose.  But  it  is  urged,  as  an  objection  to  the  con- 
stitutionality of  the  act,  that  there  ja_no  express  provision,  therein  re- 
quiring the  corporation  to  supply  all  families  and  persons  who  should 
apply^for  water,  on  reasonable  terms;  that  they  may  act  capriciously 
and  oppressively ;  and  that  by  furnishing  some  houses  and  lots,  and 
refusing  a  supply  to  others,  they  may  thus  give  a  value  to  some  lots, 
and  deny  it  to  others.  This  would  be  a  plain  abuse  of  their  franchise. 
By  accepting  the  act  of  incorporation,  they  undertake  to  do  all  the  pub- 
lic duties  required  by  it.  When  an  individual  or  a  corporation  is  guilty 
of  a  breach  of  public  duty,  by  misfeasance  or  nonfeasance,  and  the  law 
has  provided  no  other  specific  punishment  for  the  breach,  an  indictment 
will  lie.  Perhaps  also,  in  a  suitable  case,  a  process  to  revoke  and  annul 
the  franchise  might  be  maintained.  But  it  is  the  less  important  to  de- 
termine this  question,  because  this  charter  is  subject  to  the  provision  in 
the  Rev.  Sts.  c.  44,  §  23  ;  by  which  it  is  competent  for  the  legislature 
to  make  such  alterations  and  amendments,  as  more  effectually  to  caiTy 
into  effect  all  the  purposes  of  the  act. 

The  court  are  of  opinion  that  this  act  is  not  open  to  the  objections 
made  to  it,  and  that  it  is  not  unconstitutional. 

Bill  dismissed. 


PATERSON   GAS   LIGHT  CO.   V.   BRADY. 


PATERSON  GAS   LIGHT  CO.  v.  BRADY. 
Supreme  Court  of  New  Jersey,  1858. 

[27  N.  J.  L.  245,] 

Elmer,  J.  The  question  arises  in  this  ease,  whether  the  Paterson 
Gas  Light  Company  was  bound,  upon  general  principles,  or  as  a  duty 
imposed  upon  them  by  their  charter,  to  furnish  gas  to  all  buildings  on 
the  lines  of  their  main  pipes,  upon  the  applicants  therefor  agreeing  to 
pay  the  fixed  price,  and  to  comply  with  such  reasonable  regulations  as 
the  company  had  established,  as  the  court  held  in  their  charge,  and  as 
is  assumed  in  the  plaintiff's  state  of  demand,  and  was  insisted  on  in 
the  argument  before  the  court. 

That  no  such  duty  arises  out  of  the  mere  facts  that  the  company 
made  gas,  laid  pipes  in  the  streets,  and  actually  furnished  it  to  many 
persons,  may  be  safely  assumed.  Inn-keepers  and  common  carriers  are 
bound  to  receive  all  who  properly  apply  to  them,  but  this  is  a  duty 
peculiar  to  them.  I  fully  concur  with  what  is  said  by  Judge  Bronson, 
delivering  the  opinion  of  the  court  in  Wells  v.  Steam  Nav.  Co.,  2 
Comst.  209.  "  Other  bailees  and  persons  engaged  in  other  employ- 
ments are  not,  like  common  carriers  and  inn-keepers,  bound  to  accept 
employment  when  offered ;  nor,  like  them,  tied  down  to  a  reasonable 
reward  for  their  services.  They  are  at  liberty  to  demand  an  unreason- 
able price  before  the}'  will  undertake  any  work  or  trust,  or  to  reject 
employment  altogether."  And  see  Redfield  on  Railways,  293-94,  and 
note. 

But  the  court,  in  the  charge,  rested  this  duty  on  the  terms  of  the  act 
of  incorporation.  The  language  is,  "  they  were  incorporated  with  the 
special  powers  of  their  charter  for  the  purpose  of  lighting  the  streets, 
buildings,  manufactories,  and  other  places  in  this  city,  not  such  par- 
ticular streets,  buildings,  and  mills  as  the  caprice  of  their  stockholders 
or  officers  may  elect." 

Upon  looking  into  the  charter,  (Acts  of  1825,  p.  102,)  it  appears  to 
be  simply  an  act  of  incorporation,  giving  the  companj*  "  power  and 
authority  to  manufacture,  make,  and  sell  gas,  for  the  purpose  of  light- 
ing the  streets,  buildings,  manufactories,  and  other  places  situate  in 
the  said  town  of  Paterson,"  and  for  that  purpose  to  purchase,  take, 
and  hold  real  estate,  and  to  make  contracts ;  provided,  that  the  said 
real  estate  shall  not  exceed  what  may  be  absolutel}'  necessarj'  to  effect 
the  purposes  of  said  company,  and  that  no  public  or  private  land  shall 
be  dug  into,  or  in  any  way  injured  or  defaced,  without  permission  being 
first  obtained  in  writing  from  the  owner  or  owners  thereof.    No  monop- 


PATERSON    GAS    LIGHT   CO.   V.   BRADY.  7 

oly  or  special  privileges  are  granted,  except  that  the  company  is  enti- 
tled to  recover  double  damages  for  any  wilful  injury  done  to  the  pipes 
or  other  works. 

The  state  of  demand  does  not  assume,  nor  was  it  insisted  on  in  the 
argument,  that  the  charter  imposes  upon  the  company  the  duty  of  sup- 
plying gas  to  all  the  town,  but  only  to  persons  having  buildings  on  the 
line  of  their  pipes.  In  my  opinion  it  imposes  no  dutj'  of  either  descrip- 
tion, but  simply  empowers  the  incorporation  to  do  what  private  indi- 
viduals might  have  done  without  any  charter.  There  is  nothing  in  the 
act  indicating  an}'  intention  to  impose  an}-  duty  that  would  not  have 
devolved  on  an  individual  erecting  gas  works ;  nor  is  there  anything  to 
prevent  another  company,  or  any  individual  who  can  obtain  the  per- 
mission of  the  cit}'  and  owners  of  the  land,  from  setting  up  a  rival 
manufacture,  and  placing  pipes  alongside  of  those  belonging  to  the 
company.  Most  of  the  acts  incorporating  gas  companies  do,  what  this 
does  not,  authorize  the  company,  in  express  terms,  to  place  their  pipes 
in  the  public  streets  ;  but  I  am  not  aware  that  an}-  of  them  impose  the 
express  duty  of  furnishing  gas  to  all  the  persons  demanding  it,  or  to 
any  of  them.  The  Paterson  company  is  authorized  to  make  and  sell 
gas,  which,  in  the  absence  of  an}'  indication  to  the  contrary,  implies 
that  they  may  fix  their  own  price,  and  choose  their  own  customers,  like 
any  other  manufacturer.  If  the  duty  of  furnishing  gas  to  those  requir- 
ing it  was  meant  to  be  imposed,  it  would  doubtless  be  expressed,  and 
not  be  left  to  mere  inference.  If  it  is  to  be  inferred,  what  is  to  be  the 
limit  ?  Why  have  not  all  the  inhabitants  of  the  town  the  same  right 
to  demand  it  as  those  having  buildings  on  the  streets  along  which  the 
pipes  are  placed  ?  The  charter  sets  forth  the  general  purpose  of  light- 
ing all  the  streets  and  buildings,  and  the  court  below  seems  to  have 
held  that  the  company  has  no  choice  in  the  matter.  But  what  company 
in  the  state,  or  elsewhere,  could  have  ventured  to  assume  such  a  respon- 
sibility as  that? 

The  language  of  the  charter  is  throughout  permissive,  and  not  com- 
pulsory. The  company  may  organize,  may  make  and  sell  gas  or  not, 
at  their  pleasure ;  and  I  see  no  more  reason  to  hold  that  the  duty  of 
doing  so  is  meant  to  be  imperative,  than  to  hold  that  other  companies 
incorporated  to  carry  on  manufactures,  or  to  do  any  other  business,  are 
bound  to  serve  the  public  any  further  than  they  find  it  to  be  their  interest 
to  do  so.  It  was  earnestly  insisted,  on  the  argument,  that  the  commun- 
ity have  a  great  interest  in  the  use  of  gas,  and  that  companies  set  up  to 
furnish  it  ought  to  be  treated  like  inn-keepers  and  common  carriers, 
and  that,  if  no  precedent  can  be  found  for  such  a  decision,  this  court 
ought  to  make  one.  But  that  there  is  no  authority  for  so  holding  in 
England  or  America,  where  companies  have  been  so  long  incorporated 
for  supplying  water  and  gas  to  the  inhabitants  of  numerous  towns  and 
cities,  affords  a  strong  presumption  that  there  is  no  principle  of  law 
upon  which  it  can  be  supported. 


8  PATERSON  GAS  LIGHT  CO.   V.   BRADY. 

Had  the  plaintiff  averred  that  the  compan}'  had  held  out  to  the  per- 
sons occupying  buildings  on  the  streets  along  which  the  pipes  are 
laid,  that  it  was  read}*  to  fui-nish  gas  to  those  providing  the  requisite 
fixtures  and  accepting  the  prescribed  terms,  and  that  he  had  done  this, 
and  that  in  consequence  of  a  breach  of  a  contract,  thus  or  otherwise 
entered  into,  he  had  suffered  damages,  the  case  would  have  been  very 
different.  But  this  is  not  the  nature  of  his  claim.  He  claimed  and 
has  recovered  damages  and  it  would  seem  exemplary  damages,  simply 
on  the  ground  that  it  was  the  duty  of  the  company  to  furnish  gas  on 
the  streets  where  the  pipes  are  laid,  to  all  persons  demanding  it,  and 
offering  to  pay  a  reasonable  price.  Assuming  this  principle,  it  was  left 
to  the  jury  to  say  whether  one  of  the  rules  of  the  company  was  reason- 
able. Being  of  opinion  that  the  state  of  demand  discloses  no  good 
cause  of  action,  and  that  the  court  erred  in  the  charge,  I  think  the  judg- 
ment must  be  reversed. 

There  is  also  another  error  in  the  proceedings.  It  appears  that, 
before'the  hearing  of  the  appeal,  the  court  discharged  the  jurors  in  atten- 
dance from  two  townships,  without  drawing  them,  as  required  by  the 
28th  section  of  the  act  relative  to  juries.  Nix.  Dig.  385.  When  the 
appeal  was  called,  a  jury  was  demanded,  and  the  sheriff  having  returned 
a  panel,  the  defendant  below  objected,  and  the  objection  being  over- 
ruled, the  jury  was  sworn.  The  correctness  of  this  ruling  can  only  be 
maintained  b}'  holding  that  when  the  sheriff  returns  a  panel  in  the 
Court  of  Common  Pleas  for  the  trial  of  an  appeal,  as  required  b}'  the 
48th  section  of  the  small  cause  act,  he  is  not  required  to  draw  them 
from  the  box,  but  may  return  a  special  panel.  The  act  relative  to 
juries,  whether  considered  as  contemporaneous  with  the  small  cause 
act,  or  as  subsequent,  according  to  its  actual  date,  applies  to  all  jury 
cases  not  speciall}-  excepted,  and  includes  appeals.  The  language  is 
unqualified,  and  anj*  other  construction  would  be  inconvenient,  if  not 
impracticable.  The  uniform  practice  has  been  to  draw  jurors  in  such 
cases.  To  depart  from  this  practice  will  be  to  introduce  a  needless 
exception  from  the  general  policy  of  the  law,  designed  to  secure  an 
impartial  jury. 

Potts,  J.,  concurred. 


LOUISVILLE,  CINCINNATI  &  CHARLESTON  K,R.  CO.  V.  CHAPPELL.        9 


LOUISVILLE,    CINCINNATI     &    CHARLESTON    RAILROAD 
COMPANY  V.   CHAPPELL. 

Court  of  Errors  of  South  Carolina,  1838. 
[Rice,  383.] 

Richardson,  J.  This  court  has  weighed  the  argument  so  well  pre- 
sented on  the  part  of  the  appellants,  and  appreciate  its  force. 

The  practical  power  confided  to  the  railroad  compan}-  by  their 
charter,  is  great ;  and,  from  its  verj'  nature,  such  power  might  be 
abused  or  perverted,  and  landholders  anno3ed.  Because  the  route  of 
this  great  commercial  way  is,  from  necessit}',  left  to  the  understanding, 
skill  and  discretion  of  the  company  ;  and  their  authority  might  be  prac- 
tically enforced,  with  too  little  consideration  for  individual  justice,  or 
human  feelings.  But,  for  any  such  abuse  of  power,  the  laws  supply 
ample  remedy.  An  independent  jury  is  a  refreshing  sight  and  sure 
refuge  in  every  instance,  and  is  secured  by  the  charter ;  and  for  con- 
tinued abuse,  or  misuse,  any  charter  may  be  repealed.  But  when  the 
legislature  have  confided  express  power,  it  is.  not  for  this  court  to  an- 
ticipate abuses  and  offer  to  restrain  them,  when  our  judicial  province 
might  be  hereafter  required  in  their  supervision  and  correction.  All 
powers,  great  and  small,  may  be  made  oppressive.  Yet,  still,  our  ne- 
cessities require  them  to  exist  in  some  tribunal. 

If  the  railroad  route  had  been  given  for  a  common  highway',  and 
surveyors  named  to  locate  its  track  through  the  entire  State,  and  con- 
tractors hired  to  construct  such  road,  with  the  emolument  of  toll  gates, 
provided  for  compensation,  the  objections  offered  would  be  of  similar 
character  to  those  offered  in  the  argument  for  the  present  defendants 
There  would  be  no  difference  in  principle  or  degree. 

The  true  substantial  difficult}'  felt  by  the  court,  is  in  coming  to  the 
conclusion  that  the  railroad  is  to  be  put  on  the  footing  and  character 
of  a  highwa}',  and  is  erected,  not  for  private,  but  for  such  general  pur- 
poses, as  to  render  it  an  institution  for  such  public  purposes.  But, 
according  to  the  view  taken  in  the  circuit  decision,  that  the  application 
of  the  eminent  domain  of  government  is,  from  its  essential  nature,  very 
various ;  and  to  be  made  according  to  the  successive  exigencies  of  the 
State,  it  may  be  rationally-  assumed,  that  railroads,  although  of  recent 
originThave^IFeady  become  of  incalculable  public  importance  :  That  the[ 
enlarged  ends  and  objects  of  this  great  railroad  especialh",  is,  for  the 
transportation  and  intercourse,  commercial  and  social,  of  several  differ- 
ent States,  whose  interests  are  to  be  ever  regarded,  and  the  mutual 
confidence  that  belongs  to  such  a  work  sacredly  fulfilled.  This  charac- 
teristic  is  irreconcilablejvith  the  proper  conception  of  a  noere  private 


10      LOUISVILLE,  CINCINNATI  &  CHARLESTON  R.R.  CO.  V.  CHAPPELL. 

Again  :  Railroads  have  been  recognized  as  bighwajs  in  otber  States, 
witb  whose  adjudications  upon  great  subjects  of  commerce  and  recipro- 
cal advantage,  a  liberal  comit3'  ought  to  be  observed  throughout  the 
States :  and  the  same  great  objects  steadily  kept  in  view  by  all  who 
value  railroads,  a  new  moral  cement  of  the  American  Union,  as  well  as 
the  useful  vehicles  of  our  vast  and  increasing  internal  commerce  :  and 
thus  uniting  in  their  natural  operation  pecuniary  profit  with  moral  fit- 
ness, and  the  politic  establishment  of  so  many  independent  States. 

May  not  railroads,  then,  be  fairl}'  considered,  in  character  and  ob- 
jects, (and  ours  more  especially,)  as  international,  and  therefore  public 
highways? 

With  such  sentiments,  and  for  such  purposes,  we  are  bound  to  con- 
sider the  great  ends  of  our  own  railroad  system,  and  to  inquire,  under 
their  guidance,  whether  the  eminent  domain  of  government  may  not  be 
fairly  and  rationally  applied  for  its  advancement,  in  the  ver}'  way 
iwinted  out  by  the  present  charter  of  the  Louisville,  Cincinnati  and 
Charleston  Railroad  Company.  In  such  an  instance,  we  should  espe- 
cially require,  that  the  charter  shall  be  clearl}'  unconstitutional,  before 
we  put  it  in  the  power  of  any  one  freeholder  to  arrest  the  progress  of  so 
great  a  work  of  usefulness  and  high  considerations.  It  is  not  enough 
that  the  human  mind  may  balance  on  the  subject. 

But  take  another  point  of  view,  which  I  cannot  help  thinking  of  last- 
ing importance.  Such  a  railroad  as  ours,  should  be  held  as  a  highway 
on  account  of  its  great  objects :  and  for  the  same  reasons,  to  be  kept 
under  public  control.  Is  it  not  wise  to  hold  such  a  compan}*,  as  the 
guardians,  or  lessees,  of  a  great  highway,  endowed  with  a  public  fran- 
chise :  yet  subject  to  the  control  which  their  purposes  indicate  as  neces- 
sary and  proper  for  such  an  establishment,  and  which  the  general  right 
to  use  the  road  absolutely  requires  ? 

Such  a  road  must  be  held  as  a  part  of  the  public  domain,  farmed  out 
to  individual  men,  for  its  practical  administration  and  order  alone  — 
and  if  placed  aloof  from  such  control,  it  would  inevitably  become  sus- 
pected of  partialit}',  and  odious  to  the  people. 

Since  the  argument  before  this  court,  our  attention  has  been  turned 
to  the  case  of  Beekraan  v.  The  Saratoga  and  Schenectady  Railroad 
Company.  It  is  found  in  Paige's  Ch.  Rep.,  3  vol.,  45,  and  is  a  learned 
decision  of  Chancellor  Walworth,  of  New  York.  It  will  be  satisfactory 
to  the  parties  concerned  in  interest,  to  know,  that  the  following  points 
were  ably  discussed  and  decided  in  that  case:  1.  "Acts  authorizing 
railroad  companies  to  take  private  property,  for  the  purposes  of  the 
road,  upon  paying  full  compensation,  are  constitutional."  2.  "  Rail- 
roads are  public  improvements  ;  and  the  legislature  can  appropriate 
private  property'  for  such  improvements,  or  authorize  a  corporation  thus 
to  appropriate  it,  upon  full  compensation  to  the  owner."  3.  ''The^ 
public  have  an  interest  in  the  use  of  the  railroad  —  and  the  company 
are  liable  to  respond  in  damages  if  they  refuse  to  transport  an  individ- 
ual, or  bis  property,  without  reasonable  excuse,  upon  being  paid  the 


EAST   OMAHA   STREET   RAILWAY    COMPANY   V.    GODOLA.  11 

proper  rate  of  transportation."  4.  "The  legislature  ma}-  regulate  the 
use  of  the  franchise,  and  limit  the  amount  of  tolls,  unless  they  have  de- 
prived themselves  of  that  power  by  the  contract."  5.  "  It  belongs  to 
the  legislature  to  decide,  whether  the  public  benefit  is  of  sufficient  im- 
portance to  justify  the  exercise  of  the  eminent  domain  in  such  cases." 
6.  "  And  the  only  restriction  is,  that  private  propert}'  cannot  be  taken 
without  full  compensation  and  in  the  mode  prescribed." 

Thus,  then,  the  decision  of  this  court  concurs  in  ever}'  material  re- 
spect, with  those  of  other  American  judicatui'es,  who  have  considered 
the  great  modern  establishments  of  railroads.  —  And,  it  may  be  seen, 
that  the  manner  of  reasoning  in  each  court  has  been  drawn  from  the 
same  great  principles  inherent  in,  and  consecrated  by  the  American 
constitutions.  And  thus,  too,  we  have  increasing  evidence  of  our 
homogeneous  principles  —  of  their  moral  influence  and  sure  fruits,  in 
the  harmon}'  of  opinions  —  and  the  consequent  union  in  action,  which 
engender  reciprocal  regard  and  tend  so  much  to  confirm  the  success  of 
so  many  independent  States,  united  together  by  such  principles. 

The  appeal  is  dismissed  on  all  the  grounds  taken. 


EAST  OMAHA  STREET  RAILWAY  COMPANY  v.  GODOLA. 

Supreme  Court  of  Nebraska,  1897. 

[50  Neb.  906.1] 

Post,  C.  J.  Complaint  is  made  of  the  exclusion  of  evidence  to  prove 
tliat  the  defendant's  line  of  road  is  constructed  upon  private  propert3\ 
The  purpose  of  the  evidence  offered  was,  if  we  understand  the  position 
of  counsel,  to  prove  that  the  defendant  company  is  not  liable  as  a  com- 
mon carrier ;  but  that  proposition  is  not,  it  seems  to  us,  entitled  to 
serious  consideration.  The  defendant,  by  undertaking  to  tiansport 
passengers  for  hire  between  Courtland  Beach  and  the  city  of  Omaha, 
assumed  the  relation  toward  its  patrons  of  a  common  carrier,  and  the 
character  of  the  easement  in  the  right  of  way  is  wholly  immaterial. 

Affirmed. 
1  Only  one  point  is  printed.  —  Ed. 


12  EVERGREEN   CEMETERY  ASSOCIATION   V.   BEECHEE. 


EVERGREEN  CEMETERY  ASSOCIATION  v.  BEECHER. 
Supreme  Codrt  of  Connecticdt,  1885. 

[53  Conn.  551.1] 

Pardee,  J,  This  is  a  complaint  asking  leave  to  take  land  for  ceme- 
tery purposes  by  right  of  eminent  domain.  The  case  has  been  reserved 
for  our  advice. 

The  plaintiff  is  the  owner  of  a  cemetery,  and  desires  to  enlarge  it  by 
taking  several  adjoining  pieces  of  land,  each  owned  by  a  different  per- 
son, and  has  made  these  owners  joint  defendants.  Because  of  this 
joinder  they  demur.  But  we  think  that  it  is  in  harmony  with  our  prac- 
tice in  analogous  proceedings  and  with  the  spirit  of  the  Practice  Act, 
and  that  it  promotes  speedy,  complete,  and  inexpensive  justice,  with- 
out placing  any  obstruction  in  the  way  of  any  defendant  in  protecting 
his  rights.  Each  carries  his  own  burden  only;  he  is  not  made  to  carry 
that  of  any  of  his  associates.  Therefore  the  complaint,  so  far  forth  as 
this  objection  is  concerned,  is  sufficient. 

The  safety  of  the  living  requires  the  burial  of  the  dead  in  proper 
time  and  place;  and,  inasmuch  as  it  may  so  happen  that  no  individual 
may  be  willing  to  sell  land  for  such  use,  of  necessity  there  must  remain 
to  the  public  the  right  to  acquire  and  use  it  under  such  regulations  as  a 
proper  respect  for  the  memory  of  the  dead  and  the  feelings  of  survivors 
demands.  In  order  to  secure  for  burial  places  during  a  period  extend- 
ing indefinitely  into  the  future  that  degree  of  care  universally  demanded, 
the  legislature  permits  associations  to  exist  with  power  to  discharge  in 
behalf  and  for  the  benefit  of  the  public  the  duty  of  providing,  main- 
taining, and  protecting  them.  The  use  of  land  by  them  for  this  pur- 
pose does  not  cease  to  be  a  public  use  because  they  require  varying 
sums  for  rights  to  bury  in  different  localities ;  not  even  if  the  cost  of 
the  right  is  the  practical  exclusion  of  some.  Corporations  take  land 
by  right  of  eminent  domain  primarily  for  the  benefit  of  the  public,  in- 
cidentally for  the  benefit  of  themselves.  As  a  rule  men  are  not  allowed 
to  ride  in  cars,  or  pass  along  turnpikes,  or  cross  toll-bridges,  or  have 
grain  ground  at  the  mill,  without  making  compensation.  One  man  asks 
and  pays  for  a  single  seat  in  a  car ;  another  for  a  special  train ;  all 
have  rights  ;  each  pays  in  proportion  to  his  use  ;  and  some  are  excluded 
because  of  their  inability  to  pay  for  any  use ;  nevertheless,  it  remains 
a  public  use  as  long  as  all  persons  have  the  same  measure  of  right  for 
the  same  measure  of  money. 

But  it  is  a  matter  of  common  knowledge  that  there  are  man}'  ceme- 
teries which  are  strictly  private ;  in  which  the  public  have  not,  and  can- 
not acquire,  the  right  to  bury.  Clearly  the  proprietors  of  these  cannot 
take  land  for  such  continued  private  use  by  right  of  eminent  domain. 

1  Opinion  only  is  printed.  — K». 


WEYMOUTH  V.   PENOBSCOT   LOG  DRIVING  CO.  13 

The  complaint  alleges  that  the  plaintiff  is  an  association  duly  organized 
under  the  laws  of  this  State  for  the  purpose  of  establishing  a  burying 
ground ;  that  it  now  owns  one ;  that  it  desires  to  enlarge  it ;  and  that 
such  enlargement  is  necessary  and  proper.  There  is  no  allegation  that 
the  land  which  it  desires  to  take  for  such  enlargement  is  for  the  public 
use  in  the  sense  indicated  in  this  opinion. 

Therefore  the  Superior  Court  is  advised  that  for  the  reason  that  the 
complaint  does  not  set  out  any  right  in  the  plaintiffs  to  acquire  title  to 
the  land  of  the  defendants  otherwise  than  by  their  voluntary  deed,  the 
demurrer  must  be  sustained. 

In  this  opinion  the  other  judges  concurred.^ 


WEYMOUTH  V.  PENOBSCOT  LOG  DRIVING  CO. 

Supreme  Court  of  Maine,  1880. 

[71  Me.  29.2] 

An  action  on  the  case  to  recover  damages  of  the  defendant  corpora- 
tion for  carelessly  and  negligently  preventing  the  plaintiffs  from  season- 
ably delivering  751,290  feet  of  spruce  logs,  and  48,780  feet  of  pine 
logs,  cut  and  hauled  by  them  in  the  winter  of  1872-3,  on  landings  on  the 
stream  between  Caribou  lake  and  Chesuncook  lake,  at  the  outlet  of 
Chesuncook  lake,  in  consequence  of  which  600,000  feet  of  the  plaintifTs 
logs  were  not  driven  to  market  in  the  year  1873,  but  were  left  behind 
in  an  exposed  position,  where  many  were  lost,  and  there  was  a  great 
shrinkage  in  quantity  and  quality. 

The  writ  is  dated  December  8,  1877. 

Plea,  general  issue. 

The  verdict  was  for  plaintiff  for  $1,496.51,  and  the  defendants  move 
to  set  the  same  aside  as  against  law,  and  against  evidence  and  the 
weight  of  evidence.  The  defendants  also  allege  exceptions  to  refusals 
of  the  presiding  judge  to  give  certain  requested  instructions. 

Danforth,  J.  It  is  contended  that  this  action  is  not  maintainable, 
and  the  court  was  requested  to  instruct  the  jury  that,  "  The  corporation 
is  not  by  their  charter  under  any  legal  obligation  to  drive  the  logs; 
but  the  charter  gives  them  the  power  to  drive,  and  for  all  such  logs  as 
they  do  drive,  the  corporation  is  to  be  paid." 

It  is  claimed  that  this  instruction  is  required  by  a  fair  cmistruction 
of  the  terms  of  the  charter. 

It  is  unquestionably  true,  that  when  any  doubt  exists  as  to  the  mean- 
ing of  any  language  used,  it  is  to  be  interpreted  in  the  light  afforded  by 
the  connection  in  which  it  is  used,  the  several  provisions  bearing  upon 

1  Compare  :  Lombard  v.  Stearns,  4  Cush.  60.  —  Ed. 

2  This  case  is  abridged.  —  Ed. 


14  WEYMOUTH   V.   PENOBSCOT  LOG  DBIVING  CO. 

the  same  subject  matter,  the  general  purpose  to  be  accomplished,  as 
well  as  the  manner  in  which  it  is  to  be  accomplished. 

It  is  also  true  that  when  the  terms  of  an  act  are  free  from  obscurity, 
leaving  no  doubt  as  to  the  meaning  of  the  legislature,  no  construction 
is  allowed  to  give  the  law  a  different  meaning,  whatever  may  be  the 
reasons  therefor. 

The  first  ground  taken  in  support  of  the  request,  is  that  the  defendant 
company  is  a  "  mutual  association  combined  together  for  mutual  benefit 
to  aid  each  other  in  the  accomplishment  of  a  given  object  in  which  all 
are  equally  interested,"  and  the  inference  drawn  is,  that  each  is  equally 
responsible  for  the  doings  of  all.  This  view  is  endeavored  to  be  sus- 
tained by  the  alleged  facts  that  "it  is  not  a  stock  corapau}-,  has  no 
capital,  no  power  to  do  anything  for  others  than  its  own  members,  no 
permanent  stockholders,  no  stock,  and  no  provision  for  raising  moneys 
to  pa}'  an}'  charges  or  expenses  except  the  expense  of  driving." 

If  these  suggestions  are  found  to  be  apparent  from  the  provisions  of 
the  charter,  the}',  or  a  portion  of  them,  will  be  entitled  to  great  weight, 
and  might  perhaps  be  considered  conclusive.  The  most  important  of 
them  are  not  so  found.  It  may  be  that  the  charter  was  obtained  for 
the  mutual  benefit  of  the  log  owners.  Nevertheless,  by  its  express 
terms  it  constitutes  its  members  a  corporation  with  all  the  rights,  lia- 
bilities, and  individuality  attached  to  corporations  of  a  similar  nature. 
The  first  section  provides  that  certain  persons  named,  with  their  asso- 
ciates and  successors,  "  are  hereby  made  and  constituted  a  body  politic 
and  corporate,"  and  as  such  it  may  sue  and  be  sued,  prosecute  and  de- 
fend, may  hold  real  and  personal  estate,  not  exceeding  fifty  thousand 
dollars  at  any  one  time,  and  may  grant  and  vote  money.  Thus  the 
charter  gives  all  the  attributes  of  a  corporation  and  none  of  a  simple 
association.  It  may  not  have  stock,  and  if  not,  it  can  have  no  stock- 
holders. But  that  is  not  necessary  to  a  corporation,  and  does  not  con- 
stitute an  element  in  any  approved  definition  of  it.  If  it  has  no  stock, 
it  may  have  a  capital,  and  though  it  may  assess  only  a  certain  amount 
upon  the  logs  driven,  the  charter  does  not  preclude  money  from  being 
raised  in  other  ways.  Nor  is  the  amount  which  may  be  assessed  upon 
the  logs  driven  limited  to  the  expense  of  driving.  The  amendment  of 
1865  provides  for  a  toll,  not  exceeding  a  certain  amount,  upon  the  logs 
driven  "  sufficient  to  cover  all  expenses,  and  such  other  sums  as  may  be 
necessary  for  the  purposes  of  the  company." 

Nor  do  we  find  any  provision  "  that  it  may  not  do  anything  for  others  , 
than  its  own  members."  By  the  charter  it  may  drive  all  the  logs  and 
other  tim^or  to  be  driven  down  the  west  branch  of  the  Penobscot  river, 
while  all  owners  of  such  logs  may  not  be  members  of  the  company.  It 
does  not  appear  whether  the  first  corporators  were  such  owners  or 
otherwise.  In  the  charter  we  find  no  provision  prescribing  the  qualifi- 
cation of  the  members.  The  by-laws  provide,  not  that  the  member  shall 
be  an  owner  of  logs  to  be  driven,  but  he  must  be  an  "  owner  of  timber 
lands  or  engaged  in  a  particular  lumbering  operation  on  the  west  branch 


WEYMOUTH  V.   PENOBSCOT    LOG   DRIVING  CO.  15 

of  the  Penobscot  river,  or  its  tributaries,"  and  can  then  be  a  member 
onl}'  on  application  and  receiving  a  majority  of  the  votes  of  the  mem- 
bers present.  Hence  the  company  may  be  acting  for  others,  not  mem- 
bers,  while  its  members  may  not  own  a  single  log  in  the  drive. 

There  is  then  no  ground  upon  which  this  defendant  can  be  held  to  be 
a  mutual  association,  acting  as  a  partnership  for  the  benefit  of  its  own 
members  only,  each  bound  by  the  acts  of  the  others,  but  it  must  be  held  as 
a  corporation  acting  as  such,  for  the  benefit  of  its  own  members,  perhaps, 
but  also  for  such  other  owners  of  logs  as  ma}'  not  choose  to  become 
members,  or  may  not  possess  the  required  qualification  of  "  being  a 
land  owner,  or  a  practical  operator,"  or  may  not  be  able  to  get  the 
requisite  number  of  votes  to  make  them  such.  It  is  a  significant  fact 
that  in  this  case  it  does  not  appear  that  the  plaintiff  is  a  member  of  the 
defendant  company,  and  until  that  does  appear  he  cannot  be  subjected 
to  the  liabilities  of  one. 

The  fact  that  there  is  no  specific  provision  for  raising  mone}'  to  meet 
such  a  liability,  as  is  here  claimed,  is  immaterial.  It  cannot  affect  the 
plaintiff's  right  to  a  judgment.  The  liability  of  the  log  owners  to  be 
assessed,  and  its  limits,  are  fixed  by  law,  as  also  the  purposes  to  which 
such  assessments  may  be  applied.  Any  recovery-  against  the  defendant 
will  not  change  that  law  in  the  slightest  degree.  No  assessment  here- 
after made  can  be  increased  to  meet  any  contingency  not  contemplated 
by  the  charter,  and  if  the  plaintiff,  after  having  obtained  judgment,  is 
unable  to  find  means  wherewith  to  satisfy  it  in  accordance  with  the  law, 
he  will  simpl}'  be  in  the  condition  of  many  other  judgment  creditors 
before  him  who  have  paid  largel}'  for  that  which  affords  them  no  benefit. 

It  is  further  contended  that  the  action  cannot  be  maintained,  because, 
while  the  defendant  under  its  charter  has  the  right  to  drive  all  the  logs  to 
be  driven,  the  obligation  to  do  so  is  not  imposed  upon  it.  In  other 
words,  by  the  provision  of  the  charter,  it  is  left  optional  with  the  com- 
pany to  drive  such  as  it  may  choose  to  do. 

The  language  is,  "and  said  company  may  drive  all  logs  and  other 
timber  that  may  be  in  the  west  branch  of  the  Penobscot  river,"  &c., 
and  it  is  contended  that  the  word  "may"  must  be  construed  as  permis- 
sive and  not  as  imperative.  If  any  argument  were  needed  to  show  that 
such  is  its  proper  construction,  it  would  seem  that  the  able  and  exhaus- 
tive discussion  of  this  point  by  the  counsel,  would  leave  no  room  for 
doubt.  The  charter  was  granted  as  a  privilege  and  not  for  the  purpose 
of  imposing  an  obligation,  and  when  granted  it  has  no  binding  effect 
until  accepted  by  those  for  whom  it  was  intended.  But  when  accepted 
it  becomes  of  binding  force  and  must  be  taken  with  all  its  conditions 
and  burdens,  as  well  as  its  privileges.  It  cannot  be  accepted  in  part, 
but  must  be  taken  as  a  whole. 

In  this  case  the  charter  conferred  the  privilege  of  driving,  not  a  part, 
not  such  a  portion  as  the  company  might  choose,  but  "all"  the  logs  to 
be  driven.  This  right  having  been  accepted  b}'  the  compan}',  it  became 
a  vested  and  also  an  exclusive  right.     It  is  therefore  taken  not  oizly 


16      BBUSH  ELECTEIC,  ETC.  CO.  V.  CONSOLIDATED,  ETC.  SUBWAY  CO. 

from  all  other  corporations,  but  excludes  the  owner  as  well.  If  this 
exclusion  was  beyond  the  power  of  the  legislature,  it  is  not  for  this  de- 
fendant to  complain,  for  the  right  has  been  given  to  and  accepted  by  it 
By  its  acceptance  and  exclusion  of  the  owner  from  the  privilege,  in 
justice  and  in  law  it  assumed  an  obligation  corresponding  to,  and  com- 
mensurate with  its  privilege.  It  accepted  the  right  to  drive  all  the  logs, 
and  that  acceptance  was  an  undertaking  to  drive  them  all,  or  to  use 
reasonable  skill  and  diligence  to  accomplish  that  object.  This  duty  is 
not  one  imposed  by  the  charter^  certainly  not  by  that  alone,  but  is  the 
result  of  the  defendant's  own  act ;  it  is  its  own  undertaking  ;  virtually 
a  contract  on  its  part,  to  accomplish  that  which  it  was  authorized  to  do. 

Motion  and  exceptions  overruled.^ 


BRUSH  ELECTRIC  ILLUMINATING  CO.  v.  CONSOLIDATED 
TELEGRAPH  AND  ELECTRICAL  SUBWAY  CO. 

Supreme  Court,  New  York,  1891. 
[15  N.  Y.  S.  81.] 

Action  by  the  Brush  Electric  Illuminating  Company  against  the 
Consolidated  Telegraph  and  Electrical  Subway  Company.  Plaintiff 
moves  for  an  injunction. 

Ingraham,  J.  The  judgment  demanded  bj'  plaintiff  in  this  action  is 
that  the  defendant,  its  officers,  agents,  and  servants,  and  all  others 
having  notice,  be  perpetuallj'  enjoined  and  restrained  from  removing, 
cutting  out,  or  in  any  manner  whatsoever  interfering  with  the  cables 
and  conductors  or  the  property  of  the  plaintiff,  and  from  interfering 
with  the  plaintiff,  or  its  officers,  agents,  and  servants,  in  operating  or 
maintaining  the  said  cables  and  conductors,  and  in  having  access  to 
them  or  any  of  the  plaintiff's  property  in  the  subways  of  the  defendant, 
or  elsewhere,  and  that  this  court  determine  and  adjudge  what  would  be 
a  just  and  reasonable  rental  for  the  use  of  the  ducts  and  subways  by 
the  plaintiff  and  the  terms  upon  which  such  rentals  must  be  paid,  and 
that  defendant  be  enjoined  from  committing  an)'  of  said  acts  during 
the  pendency  of  the  action.  An  inspection  of  the  complaint  shows 
that  the  theory  upon  which  the  plaintiff  brought  the  action  was  that  in 
some  wa}-  this  court  had  power  to  fix  what,  in  its  judgment,  would  be  a 
reasonable  rental  for  the  plaintiff  to  pay  for  the  use  of  the  ducts  occu- 
pied by  it  It  seems  to  me  clear  that  this  court  has  no  such  power  to  fix 
or  determine  what  rental  plaintiff  should  pay,  or  what  would  be  a  rea- 
sonaV)le  compensation  to  be  paid  by  plaintiff,  for  its  use  of  the  subwaj-s. 
The  defendant  has  constructed  these  subwajs  in  pursuance  of  two  con- 
trftcts,  known  as  the  contracts  of  July,  1886,  and  of  April,  1887.    The 

*  Compare:  Mann  v.  Log  Co.,  46  Mich.  38.  —  Ed. 


BRUSH  ELECTRIC,  ETC.  CO.  V.  CONSOLIDATBD,  ETC.  SUBWAY  CO.      17 

contract  of  April,  1887,  was,  in  terras,  a  modification  of  the  contract 
of  1886,  and  under  its  provisions  the  defendants  were  authorized  to 
build,  equip,  maintain,  and  operate  the  subways  in  the  contract  men- 
tioned and  referred  to.  The  defendant,  b}'  the  contract,  agreed  that 
spaces  in  said  subways  shall  be  leased  by  the  parties  of  the  first  part 
(the  board  of  electrical  subwaj-s)  to  an}'  companj-  or  corporation  having 
lawful  power  to  operate  electrical  subwaj's  in  the  streets  in  the  city  of 
New  York  that  may  apply  for  the  same.  It  does  not  appear,  however, 
that  the  board  have  ever  acted  under  this  authority.  The  contract, 
however,  further  provides  that  the  party  of  the  second  part  (this  defend- 
ant) ma}'  fix  a  fair  scale  of  rent  to  be  charged,  but  the  scale  of  rents 
or  any  charges  fixed  or  made  by  defendant  shall  at  all  times  be  subject 
to  the  control,  modification,  and  revision  by  the  board  of  electrical  con- 
trol, and  that  no  contract  shall  be  made  between  the  part}'  of  the 
second  part  (the  defendant)  and  any  company  or  corporation  on  any 
terms  which  shall  not  require  the  payment  by  such  other  companies  or 
corporations  of  rents  at  the  rates  so  fixed.  This  contract  was  expressly 
ratified  by  chapter  716,  Laws,  1887,  and  it  must  control  the  right  of  the 
defendant  to  the  use  of  the  subways  constructed  by  the  defendant.  It 
will  be  seen  that  the  provisions  of  this  contract  gave  to  the  defendant 
in  the  first  instance  the  authority  to  fix  a  uniform  rate  to  be  paid  by  all 
persons  occupying  its  subways.  That  rate  must  be  a  fair  one,  but  the 
corporation  is  to  say,  in  the  first  instance,  what  is  a  fair  charge  for  the 
use  of  the  subway ;  and  it  is  clear  that  until  the  rate  fixed  is  modified 
by  the  board  of  electrical  control,  who  are  the  successors  of  the  com- 
missioners of  the  electrical  subways,  the  rate  so  fixed  must  be  paid  by 
all  persons  using  the  subways.  It  is  thus  left  to  the  commissioners  to 
determine  whether  or  not  the  rate  fixed  by  the  defendant  is  a  fair  and 
reasonable  rate,  and  this  court  is  given  no  power  to  review  the  exercise 
of  that  discretion ;  and  since  the  commencement  of  this  action  the 
board  of  electrical  control  has  passed  upon  the  question,  and  fixed  the 
rent  that  the  plaintiff  is  to  pay  for  the  use  of  the  subways.  I  think, 
therefore,  that  the  court  cannot  determine  what  would  be  a  just  and 
reasonable  rental  for  the  use  of  the  subways  by  plaintiff.  Nothing  in 
section  7  of  the  act  of  1887  would  justify  the  court  in  reviewing  the 
action  of  the  board  of  electrical  control,  for  it  was  the  evident  intent 
of  that  section  to  give  to  the  court  power  by  mandamus  to  compel  the 
defendant  to  comply  with  its  contract,  and  furnish  just  and  equal  facili- 
ties to  corporations  applying  for  the  use  of  the  subways,  not  to  fix  the 
rent  that  was  to  be  paid,  which  was,  by  the  express  terms  of  the  con- 
tract, to  be  fixed  by  defendant,  subject  to  the  review  of  the  board,  and 
the  rate  thus  fixed  must  be  paid  by  each  corporation  using  the  subways* 
Nor  do  I  think  that  the  plaintiff  would  be  entitled  to  an  injunction 
restraining  the  defendant  from  removing,  cutting  out,  or  in  any  manner 
mterfering  with  the  cables  and  conductors  of  the  plaintiff.  The  exact 
relation  that  exists  between  plaintiff  and  defendant  is  not  easy  to  deter- 
mine.    The  defendant  being  the  owner  of  these  subways,  or  ducts, 


18      BRUSH  KLECTKIC,  ETC.  CO.  V.  CONSOLIDATED,  ETC.  SUBWAY  CO. 

built  under  the  surface  of  the  streets  in  the  city  of  New  York,  the 
plaintiflf  being  desirous  of  using  such  subways  for  its  wires  or  cables 
witii  which  to  supply  electricity  to  its  customers,  presented  to  the  de- 
fendant an  instrument  in  writing  whereb}'  application  was  made  for 
space  in  the  electrical  subway  (specifying  the  street  or  avenue)  for  the 
term  of  one  year,  to  be  used  for  electrical  light  and  power  purposes. 
In  some  of  these  applications  the  rate  or  rental  was  fixed  at  $1,000  per 
duct  per  mile  per  annum;  in  other  applications  the  amount  of  rent  was 
not  mentioned.  The  rates  fixed  by  defendant  had,  however,  been  com- 
municated to  the  plaintiff  prior  to  making  of  the  applications  in  ques- 
tion. No  agreement  or  contract  of  any  kind  appears  to  have  been 
signed  by  defendant,  nor  did  it  agree  to  allow  the  plaintiff  to  continue 
to  use  the  duct  or  subway  for  any  specified  term.  At  most  it  was  an 
acceptance  of  the  application,  and  a  verbal  permission  to  use  the  duct 
for  the  purpose  mentioned.  So  far  as  the  plaintiff  can  claim  under  an}' 
grant  or  contract  made  by  defendant,  this  would  constitute  a  mere 
license  to  the  plaintiff  to  use  the  subway  or  duct  for  the  period  men- 
tioned. B}'  such  license  the  plaintiff  acquired  no  interest  in  the  sub- 
way*, and,  under  the  contractual  relations  between  the  parties,  the 
defendant  was,  I  think,  entitled  to  revoke  the  license  at  any  time,  and 
upon  the  revocation  of  the  license  all  rights  of  the  plaintiff  in  the  sub- 
way ceased.  The  distinction  between  a  license  and  an  easement  is 
stated  in  Wiseman  v.  Lucksinger,  84  N.  Y.  42,  and  I  think,  under  the 
rule  there  laid  down,  this  permission  to  use  these  ducts  could  be  nothing 
more  than  a  license,  and  revokable  at  the  pleasure  of  the  licensor. 

The  plaintiff,  however,  claims  that  the  defendant  is  a  quasi  public 
corporation,  and  has  only  such  rights  as  are  given  to  it  by  charter,  and, 
as  it  is  nowhere  expressly  given  the  right  to  withdraw  the  plaintiff's 
wires  from  its  ducts,  when  the}'  are  once  there  it  must  allow  them  to 
remain  there  forever ;  and  the  only  remedy  that  the  defendant  has 
against  the  plaintiff,  or  any  one  using  its  ducts,  is  an  action  at  law  for 
the  recovery  of  the  rent  reserved.  It  has  been  held,  however,  that 
this  principle  has  reference  to  remedies  or  processes  of  a  judicial  nature 
only,  and  does  not  affect  the  right  of  a  person  to  do  such  material  acts 
as  are  necessary  to  protect  his  rights.  Jordan,  etc.  Co.  v.  Morley,  23 
N.  Y.  554.  But  the  statutes  and  contracts  in  question  conferred  upon 
defendant  no  remedy  in  case  of  the  refusal  of  a  person  using  its  sub- 
ways to  pay  the  rate  fixed,  and  I  can  see  no  reason  why  it  should  not 
have  the  same  rights  that  any  other  person  would  have  under  simi- 
lar circumstances.  It  seems  to  me,  however,  that  this  position 
arises  out  of  a  misconception  of  the  defendant's  real  position.  Tlie 
defendant  is  not  a  common  carrier,  nor  has  it  received  from  the  State 
a  franchise  such  as  is  conferred  upon  a  ferry  company  or  a  turnpike 
road.  Defendant,  it  is  true,  obtained  permission  from  the  public 
authorities  to  build  these  subways  in  the  public  streets,  and  it  has  bound 
itself  by  contract  to  furnish  to  such  corporations  or  individuals  as  have 
authority  to  use  the  public  streets  for  electrical  purposes  the  use  of  its 


BRUSH  ELECTRIC,  ETC.  CO.  V.  CONSOLIDATED,  ETC.  SUBWAY  CO.      19 

8ubwa3-s,  but  such  obligation  rests  entirely  upon  its  contract  under 
which  it  received  its  autliority  to  build  its  subways.  Irrespective  of 
that  contract,  and  section  7  of  the  Acts  of  1887,  the  plaintiff  would 
have  no  right,  against  tlie  will  of  the  defendant,  to  use  its  subways, 
nor  would  tlie  public  authorities,  nor  the  courts,  have  power  to  compel 
tlie  defendant  to  give  any  riglits  to  the  plaintiff.  Whatever  rigiit,  there- 
fore, the  plaintiff  acquired,  it  is  under  tlie  contract  under  which  the 
defendant  had  authorit}'  to  build  the  subways,  and  the  statutes  under 
which  such  contract  was  made,  and  there  can  be  notliing  found  in  these 
statutes  or  contract  that  would  justify  the  claim  of  the  plaintiff.  On 
the  contrar3',  the  utmost  care  is  taken  to  provide  for  the  payment  of 
compensation  to  the  defendant  for  the  use  of  the  subways,  and  defend- 
ant is  expressly  prevented  from  giving  any  one  the  right  to  use  them, 
except  upon  the  payment  of  the  rate  fixed ;  and  to  say  that  a  corpora- 
tion getting  pCTmission  to  use  the  subwa3's  upon  an  agreement  to  pay 
the  rate  fixed  for  its  use,  under  the  provisions  of  the  statute,  could,  by 
simph"  refusing  to  pay,  defeat  the  express  provisions  of  the  contract  by 
using  the  subway  without  paying  for  it  the  rate  fixed  or  paying  a  less 
rate,  would  subvert  the  whole  scheme  under  which  the  subwaj's  have 
been  built. 

The  conduct  of  the  plaintiff  has  not  been  such  as  to  commend  it  to 
the  favorable  consideration  of  a  court  of  equity.  Although  well  know- 
ing the  rates  fixed  by  defendant  for  the  use  of  its  subwa3's,  and  where 
in  the  application  the  amount  of  rent  is  stated,  no  application  was  made 
to  the  board  of  electrical  control  to  review  the  action  of  the  defend- 
ant in  fixing  the  rent,  nor  did  the  plaintiff  pay  or  tender  to  the  defendant 
any  sum  as  compensation  for  the  use  of  the  subway-  by  it.  It  simply 
held  on  to  the  subway,  paying  nothing  for  its  use  until  the  defendant 
threatened  to  revoke  the  permission  given  to  use  the  subway,  and  then, 
without  paying  or  offering  to  pay  to  the  defendant  anything,  it  applies 
to  the  court  for  an  injunction,  under  which  it  could  continue  to  use  the 
subways  indefinitely,  without  paying  anything  for  the  right  it  enjo3"s. 
Under  such  circumstances,  it  would  require  a  clear  case,  and  one  free 
from  doubt,  to  justify  the  interference  of  the  court.  I  have  examined 
carefull3'  the  elaborate  arguments  submitted  on  behalf  of  the  plaintiff, 
and,  while  it  has  been  impracticable  to  notice  all  of  the  points  made,  I 
have  come  to  the  conclusion  that  upon  no  ground  can  the  plaintiff  be 
entitled  to  any  relief  in  this  action.  The  motion  for  injunction  must 
therefore  be  denied,  and  temporary  injunction  vacated. 


20  JOHNSTON'S  APPEAL. 


JOHNSTON'S  APPEAL. 

Supreme  Coubt  of  Pennstlvakia,  1886. 

[7  Atl.  167.] 

Appeal  of  Henry  M.  Johnston  from  decree  of  common  pleas  No.  2, 
Allegheny  county,  dismissing  his  bill  in  equity  filed  against  the  People's 
Natural  Gas  Company  and  others. 

Per  Curiam,  jt  is  a  carious  objection  to  set  up  against  the  act  of 
May  29,  1885,  in  view  of  the  present  consumption  of  natural  gas,  that 
its  use  is  not  a  public  one,  and  that,  therefore,  those  corporations  which 
are  engaged  in  its  transportation  may  not  be  vested  with  the  right  of 
eminent  domain.  As  well  might  this  objection  be  urged  against  the 
vesting  of  this  power  in  those  companies  which  have  been  incorporated 
for  the  purpose  of  supplying  our  towns  and  villages  with  water,  in 
which  the  public  interest  is  found,  not  in  the  transportation,  but  in  the 
use  of  that  fluid  after  it  has,  by  these  agencies,  been  transported.  Nor 
would  it  seem  to  us  as  of  the  slightest  materiality  that  the  water  thus 
produced  had  been  drawn  from  a  single  spring,  well,  or  basin.  Just  so 
with  natural  ,gas^  It  has  become  a  public  necessity  ;  but,  as  it  cannot 
be  used  except  it  be  piped  to  the  manufactories  and  residences  of  the 
people,  it  follows  that,  as  the  piping  of  it  is  necessary  to  its  use,  the 
means  so  used  for  its  transportation  must  be  jof  prime  importance  to 
the  public,  and  directh-  afl'ect  its  welfare. 

The  decree  of  the  court  below  is  afllrmed,  and  the  appeal  dismissed, 
at  the  costs  of  the  appellant 


STATE  V.   EDWARDS.  21 


STATE  V.  EDWARDS. 

Supreme  Court  of  Maine,  1893. 

[86  Me.  102.] 

Haskell,  J.  The  defendants  were  convicted  under  R.  S.,  c.  57, 
§§  5  and  6,  as  amended  by  the  Act  of  1885,  c.  332,  on  two  several 
counts ;  first,  of  refusing  to  receive  grain  at  their  grist-mill  there 
tendered  to  be  ground  ;  second,  of  taking  excessive  toll.  The  defend- 
ants have  exception  to  the  ruling  of  the  court  that  they  were  bound  to 
receive  the  grists  of  grain  offered,  and  grind  the  same  for  the  toll 
specified  by  the  statute,  and  that  an  agreement  for  toll  in  excess  of 
that  fixed  by  statute  would  be  no  defence. 

The  case  does  not  show  what  kind  of  a  mill  the  defendants  operated, 
nor  whether  it  was  a  public  or  private  mill,  nor  whether  it  was  a  water- 
mill,  steam-mill  or  wind-mill.  It  assumes,  however,  that  it  was  a  grist- 
mill, used  for  grinding  grain  for  the  public. 

Exceptions  must  show  sufficient  facts  to  make  the  ruling  erroneous. 
Reed  v.  Reed,  70  Maine,  504.  In  this  case,  therefore,  if  the  ruling 
excepted  to  be  correct,  and  the  statute  under  which  the  conviction  was 
had  be  constitutional  when  applied  to  an}'  kind  of  a  grist-mill,  judg- 
ment must  be  entered  on  the  verdict.  And  it  may  be  assumed  that 
defendants'  mill  was  a  public  grist-mill,  propelled  by  a  head  of  water 
obtained  under  authority  of  the  mill  act,  R.  S.,  c.  92. 

Assuming  the  mill  to  be  a  public  mill,  and  the  statute  under  which 
the  conviction  was  had  to  be  valid,  an  agreement  between  the  owner  of 
the  grain  and  the  defendants,  for  toll  in  excess  of  the  statute  quantity', 
can  be  no  defence.  The  act  of  the  defendants  in  taking  excessive  toll 
was  just  as  much  in  defiance  and  violation  of  the  statute,  when  taken 
by  agreement  with  the  owner  of  the  grist,  as  if  taken  without  his  con- 
sent. The  defendants'  act  is  prohibited  by  the  statute.  They  wert? 
required  to  run  their  public  mill  for  statute  toll,  with  equal  dispatch  for 
all  the  patrons  of  their  mill.  They  were  required  to  receive  grists  and 
grind  them  in  their  turn,  without  motive  for  unequal  dispatch  to  those 
willing  to  pa}'  an  extra  price  for  it.  The  taking  of  usury  b}-  agreement 
with  the  borrower  of  money  is  analogous.  Freedom  from  blame  oiv 
the  part  of  the  lender  is  not  a  bar  to  the  borrower's  right  to  recove«* 
back  the  usury.  Houghton  v.  StowcU,  28  Maine,  215.  The  statute 
under  which  the  conviction  was  had  imposes  no  such  condition. 

But  it  is  stoutly  asserted  that  the  statute  is  unconstitutional  as  an 
invasion  of  the  private  right  of  enjoyment  of  propertj'.  The  mill  act  or 
Maine  applies  to  all  water-mills  ;  and  whether  its  validity  results  from 
the  exercise  of  eminent  domain,  as  supposed  by  man}*  cases,  Jordan  i\ 
Woodard,  40  Maine,  317 ;  Great  Falls  Mfg.  Co.  v.  Fernald,  47  N.  H. 


22  STATE  V.  EDWARDS. 

444 ;  Olmstead  v.  Camp,  33  Conn.  532,  and  others  cited  by  Gould  on 
Waters,  §  253,  and  b}-  the  Supreme  Court  in  Head  v.  Amoskeag  Mfg. 
Co.,  113  U.  S.  9,  or  from  the  proper  regulation  of  the  rights  of  riparian 
owners,  so  as  to  best  ser>'e  the  public  welfare,  having  due  regard  to  the 
interests  of  all,  as  held  in  Head  v.  the  Amoskeag  Mfg.  Co.  supra,  and 
in  Murdock  v.  Stickne^-,  8  Cush.  114,  and  remarked  by  the  Court  in 
Lowell  r.  Boston,  111  Mass.  466,  it  is  unnecessarj*  now  to  consider. 

It  is  conceded  b}-  all  authorities  that  the  public  use  of  propert\'  by 
the  individual  is  within  the  scope  of  legislative  control.  And  it  matters 
not  whether  the  use  be  authorized  b}-  express  statute  or  dedicated  by 
the  individual  proprietor.  If  it  be  a  public  use,  it  is  within  the  super- 
vision and  control  of  the  legislature.  The  troublesome  question  is, 
whether  the  use  be  public.  Tyler  v.  Beacher,  44  Vt.  648.  In  most 
branches  of  business  the  public  has  an  interest.  That  interest  varies 
according  to  the  surrounding  conditions  of  the  particular  business  in 
question.  If  it  be  a  monopoly,  the  interest  of  the  public  to  be  fairly 
and  conveniently  served  is  much  greater  than  when  the  monopoly 
ends  b}'  force  of  wholesome  competition.  A  distinction  must  be  made 
between  a  public  use  and  a  use  in  which  the  public  has  an  interest.  In 
the  former  case,  the  public  may  control,  because  it  is  a  use  within  the 
function  of  government  to  establish  and  maintain.  In  the  latter  case, 
it  is  a  private  enterprise  that  serves  the  public  and  in  which  it  is  inter- 
ested to  the  extent  of  its  necessities  and  convenience.  The  former  is 
clearly  within  the  control  of  the  legislature,  while  the  latter  may  not  be. 
Many  authorities,  however,  go  to  that  extent.  Munn  v.  Illinois,  94 
U.  S.  113  ;  Budd  v.  New  York,  143  U.  S.  517,  and  cases  cited.  The 
public  is  interested  to  be  well  and  reasonably  served  at  the  store  of  the 
tradesman,  the  shop  of  the  mechanic  and  the  office  of  the  professional 
man,  and  j-et,  all  these  vocations  are  private.  The  goods  on  sale  in 
the  store,  material  furnished  by  the  mechanic,  and  the  skill  emploj'ed 
b}-  the  professional  man  are  the  individual  property  of  each  one  respec- 
tively. Their  vocations  are  exercised  for  their  own  gain,  and  they  have 
a  right  to  the  fruits  of  their  own  industry  without  legislative  control. 
It  must  not  be  understood  that  each  one  may  not  be  properly  subjected 
to  suitable  police  regulations  as  to  the  manner  of  his  business;  2  Kent, 
340;  but  the  business  cannot  be  thereby  controlled  and  the  profits  to 
be  gained  therefrom  destroyed,  taken  away  or  limited  bv  the  establish- 
ment of  prices ;  otherwise  we  should  have  a  paternal  government  that 
might  crush  out  all  individual  lil)ert3\  and  the  declaration  of  our  con- 
stitution would  become  as  valueless  as  stubble. 

It  is  conceded  by  all  authorities  that  common  carriers,  common 
ferries,  common  roads,  common  wharves,  common  telegraphs  and 
common  telephones,  etc.,  and  common  grist-mills  and  common  lumber 
mills  are  of  that  public  nature  to  be  put  under  public  control,  whether 
operated  under  the  authoritv  of  charters  from  the  state,  or  by  indi- 
vidual  enterprise.      Each   of  those  cases   is   within  the  function  of 


STATE   V.   EDWARDS.  23 

government  to  establish  and  maintain,  and,  therefore,  to  control,  by 
whomsoever  exercised.  Blair  v.  Cuming  Count}-,  111  U.  S.  363; 
Head  v.  Amoskeag>Mfg.  Co.,  113  U.  S.  9;  Stone  v.  Farmer's  Loan 
and  Trust  Co.,  116  U.  S.  307  ;  Chicago,  Milwaukee  &  St.  Paul  Ry.  Co. 
V.  Minnesota,  134  U.  S.  418. 

Mills  for  the  grinding  of  grain  and  for  the  sawing  of  lumber  for  all 
comers  have  been  aided  or  established  b}'  the  legislature  from  the 
earliest  colonial  times.  Those  mills  were  usually  water-mills  ;  but  it 
is  of  no  moment  what  the  propelling  power  ma}'  be.  Burlington  v. 
Beasley,  94  U.  S.  310.  The}'  have  always  been  considered  so  neces- 
sary for  the  existence  of  the  community  that  it  was  proper  for  govein- 
ment  to  foster  or  maintain  them  ;  and  in  the  absence  of  government' 
aid,  the  individual  proprietor,  not  pretending  to  serve  the  public,  miglit 
maintain  such  mills  as  private  mills,  free  from  legislative  interference, 
precisely  as  he  might  maintain  a  store,  shop,  or  other  private  business; 
but  when  such  proprietor  makes  his  mill  public,  assumes  to  serve  the 
public,  then  he  dedicates  his  mill  to  public  use  and  it  becomes  a  public 
mill,  subject  to  public  regulation  and  control.  He  is  not  compelled  to 
continue  such  public  use,  but  so  long  as  he  does,  he  becomes  a  public 
servant  and  may  be  regulated  by  the  public. 

In  the  present  case,  the  mill  must  be  considered  a  public  mill  and 
rightfully  within  legislative  control.  No  suggestion  is  made  that  the 
statute  regulation  is  unreasonable,  and  therefore  it  is  unimportant  to 
consider  whether  the  reasonableness  of  the  statute  regulation  be  a 
legislative  or  judicial  function.  £Jxceptions  overrvled. 


24         SAMMONS   V.   KEARNEY   POWER  4   IRRIGATION   COMPANY. 


SAMMONS  V.  KEARNEY  POWER  &  IRRIGATION  COMPANY. 

Supreme  Coubt  of  Nebraska,  1906. 

[110  N.  W.  808.1] 

This  brings  us  tx)  the  intervener's  cross-appeal.  Its  contract  for  the 
use  of  water  contains  this  clause :  "  The  p&Tty  of  the  first  part  further 
agi'ees  not  to  sell  water  for  power  to  any  person  or  corporation,  intend- 
ing to  compete  with  the  party  of  the  second  part  (intervener)  in  the 
generation  of  electricity  for  sale."  The  trial  court  held  the  foregoing 
clause  to  be  contrary  to  public  policy  and  void,  and  the  intervener  con- 
tends that  the  decree  to  that  extent  is  erroneous.  In  support  of  this 
contention  many  cases  are  cited  wherein  exclusive  franchises  to  operate 
ferries,  to  construct  bridges,  or  to  supply  cities  with  water  or  gas  for  a 
limited  time  have  been  upheld.  See  New  Orleans  Gas  Co.  v.  Louisiana 
Light  Co.,  115  U.  S.  650,  6  Sup.  Ct.  252,  29  L.  Ed.  516;  New  Orleans 
Waterworks  Co.  v.  Rivers,  115  U.  S.  674,  6  Sup.  Ct.  273,  29  L.  Ed. 
525  ;  Louisville  Gas  Co.  v.  Citizens'  Gas.  Co.,  115  U.  S.  683,  6  Sup.  Ct. 
265,  29  L.  Ed.  510;  Citizens'  Water  Co.  v.  Bridgeport  Hydraulic  Co., 
65  Conn.  1,  10  Atl.  170;  Des  Moines  Street  R.R.  Co.  v.  Des  Moines 
Broad  Gauge  Street  Ry.  Co.,  73  Iowa,  513,  33  N.  W.  610,  35  N.  W. 
602  ;  Davenport  Electric  Light  Co.  v.  Cit}-  of  Davenport,  124  Iowa,  22, 
98  N.  W.  892  ;  Bridge  Proprietors  v.  Hoboken  Co.,  1  Wall.  116,  17  L. 
Ed.  571;  The  Binghamton  Bridge,  3  Wall.  51,  18  L.  Ed.  137.  The 
distinction  \)etween  these  cases  and  the  case  at  bar  is  obvious.  A  mu- 
nicipal corporation  is  an  instrumentality  of  the  state  for  tlie  better  ad- 
ministration of  government  in  matters  of  local  concern.  United  States 
V.  New  Orleans,  98  U.  S.  381,  20  L.  Ed.  434.  The  main  purpose  of 
its  creation  is  the  exercise  of  certain  governmental  functions  within  a 
defined  area.  While  it  has  the  power  to  make  contracts  and  transact 
other  business  not  strictl}-  governmental  in  character,  such  powers  are 
incidental  or  auxiliar\'  to  its  main  purpose.  In  none  of  the  cases  cited 
was  there  any  attempt  on  the  part  of  a  municipalit}'  to  restrict  its  gov- 
ernmental functions,  or  to  place  itself  in  a  position  where  it  would  be 
incapable  of  carrying  out  the  purpose  for  which  it  was  created. 

In  the  case  at  bar  we  are  dealing  with  an  irrigation  company  —  a 
quasi  public  corporation.  It  is  also  a  governmental  agency,  but  its 
main  purpose  is  the  administration  of  a  public  utility.  To  the  extent 
of  its  capacity  it  is  bound  to  furnish  water  from  its  canal  to  persons 
desiring  to  use  it  on  equal  terms  and  without  discrimination.     In  this 

1  Only  that  part  of  the  case  which  relates  to  the  intervener's  appeal  is  printed.  —  Eo. 


SAMMONS   V.   KEARNEY  POWER   &   IRRIGATION   COMPANY.  25 

respect  it  stands  on  the  same  footing  as  a  railroad  conopany.  Neither 
has  the  right  nor  the  power  to  place  itself  in  a  position  where  it  cannot 
serve  every  person  on  equal  terms  with  every  other  person.  Neither 
has  the  right  nor  power  to  bind  itself  by  a  contract  which,  if  enforced, 
would  render  it  unable  to  serve  the  public  on  those  terms  or  to  carry 
out  its  main  purpose.  lu  State  v.  Hartford,  etc.,  R.R.  Co.,  29  Conn. 
538,  where  a  railroad  company  had  placed  itself  in  such  position,  Ells- 
worth, J.,  pertinently  asks :  "  What  right  had  it  to  covenant  it  would 
not  run  its  cars  to  tidewater,  as  its  charter  prescribes  and  the  public 
accommodation  requires  ?  "  And  with  equal  force  it  may  be  asked  in 
this  case :  What  right  had  the  irrigation  company,  bound  by  the  very 
nature  of  its  organization  to  furnish  water  to  the  public  without  discrim- 
ination, to  bind  itself  by  the  clause  in  question,  which  would  prevent  it 
performing  such  services?  In  Chicago  Gaslight  Co.  v.  People's  Gas- 
light Co.,  121  111.  530,  13  N.  E.  169,  1  Am.  St.  Rep.  124,  one  of  the 
propositions  of  law  laid  down  is  that  a  corporation,  owing  a  dut}'  to  the 
public,  cannot  make  a  valid  contract  not  to  discharge  such  duty.  From 
this  proposition  it  would  necessarily  follow  that,  where  a  corporation 
owes  a  duty  to  the  public  generally',  it  cannot  bind  itself  by  contract  to 
serve  one  person  to  the  exclusion  of  all  others. 

In  West  Virginia  Transportation  Co.  v.  Ohio  River  Pipe  Line  Co., 
22  W.  Va.  600,  46  Am.  Rep.  527,  a  landowner  had  granted  to  an  oil 
transportation  compan}'  the  exclusive  right  of  way  and  privilege  of  lay- 
ing and  maintaining  pipes  for  transporting  oil  through  a  tract  of  2,000 
acres,  and  the  contract  was  held  invalid,  as  an  unreasonable  restraint  of 
trade  and  contrary  to  public  polic}'.  In  that  case  a  large  number  of 
authorities  are  reviewed,  among  which  are  many  wherein  contracts  in 
restraint  of  trade  have  been  upheld,  and  others,  again,  where  they  have 
been  held  void  as  against  public  policj'.  The  court  there  holds  that  the 
test  is  whether  the  restraint  is  prejudicial  to  the  public  interest,  and 
then  uses  this  language:  ''From  the  principles  which  underlie  all  the 
cases  the  inference  must  be  necessarilj'  drawn  that,  if  there  be  any  sort 
of  business  which  from  its  peculiar  character  can  be  restrained  to  no 
extent  whatever  without  prejudice  to  the  public  interest,  then  the  courts 
would  be  compelled  to  hold  void  any  contract  imposing  any  restramt, 
however  partial,  on  this  peculiar  business,  provided,  of  course,  it  be 
shown  clearly  that  the  peculiar  business  thus  attempted  to  be  restrained 
is  of  such  a  character  that  any  restraint  upon  it,  however  partial,  must 
be  regarded  by  the  court  as  prejudicial  to  the  public  interest.  Are  there 
any  sorts  of  business  of  this  peculiar  character?  It  seems  to  me  that 
there  are,  and  that  they  have  been  recognized  as  possessing  this  pecul- 
iar character,  both  by  the  statute  law  and  by  the  decisions  of  the 
court.  Are -not  railroading  and  telegraphing  forms  of  business  which 
are  now  universally  recognized  as  possessing  this  peculiar  character?" 
The  principle  involved  in  the  case  at  bar  does  not,  as  it  appears  to  us, 
differ  from  that  involved  in  the  case  from  which  we  have  just  quoted. 
The  business  of  the  irrigation  company  is  of  the  peculiar  character 


26  SAMMONS  V.   KEARNEY    POWER   4  IRRIGATION   COMPANY. 

mentioned  by  the  West  Virginia  court.  In  the  latter  there  was  an  at- 
tempt to  give  one  person  engaged  in  transporting  oil  an  exclusive  right 
to  occup\'  certain  lands  for  that  purpose,  to  the  exclusion  of  all  others 
who  under  the  laws  of  that  state  had  an  equal  right  to  use  tlie  land  after 
proper  condemnation  proceedings  for  the  same  purpose.  Here  there 
was  an  attempt  to  give  the  intervener  an  exclusive  right  for  a  term  of 
j'ears  to  use  water  which  under  the  law  the  irrigation  company  was 
bound  to  furnish  to  the  public  on  equal  terms,  and  tlie  one,  no  less  than 
the  other,  is  contrary  to  public  policy  and  illegal. 

But  the  intervener  takes  the  position  that  the  question  of  the  validity 
of  that  clause  of  the  contract  is  not  involved  in  this  case,  and,  conse- 
quently, that  the  determination  thereof  by  the  trial  court  is  error.  This 
position  is  clearl}'  untenable.  The  intervener  came  into  court  asserting 
the  priority  of  its  rights  under  its  contract  with  the  mortgagor.  Such 
contract,  or  lease,  is  in  the  nature  of  a  prior  incumbrance,  and  it  was 
eminently  proper  for  the  court  to  ascertain  and  determine  the  nature 
and  extent  of  such  incumbrance.  The  position  of  the  intervener  is 
analogous  to  that  of  a  first  mortgagee,  who  appears  in  a  case,  asserting 
the  priority  of  his  lien,  but  not  asking  its  foreclosure.  In  such  cases 
the  propriety  of  finding  the  amount  due  on  the  first  mortgage  and  or- 
dering a  sale  subject  thereto  has  never  been  questioned.  Whether  the 
intervener,  because  of  the  public  service  required  of  it  by  its  contract 
with  the  cit}'  of  Kearney,  would  be  entitled  to  a  preference  over  those 
using  water  for  private  purposes,  is  a  question  that  does  not  arise  at 
this  time ;  and,  when  it  does,  if  it  ever  does,  we  apprehend  it  will  turn 
on  questions  of  public  policy,  rather  than  the  contractual  rights  of  the 
parties. 

Other  questions  are  presented  by  the  cross-appeal ;  but,  in  the  view 
we  have  taken  of  the  case,  they  are  not  such  as  affected  the  rights  of 
^N,he  intervener.     Consequentl}'  they  will  not  be  considered. 

It  is  recommended  that  the  decree  of  the  district  court  be  affirmed. 

DcFFiE  and  Jackson,  CC,  concur. 


CINCINNATI,   HAMILTON,   ETC.   R.   R.   V.   BOWLING   GREEN.  27 

Per  Curiam.     For  the  reason  stated  in  the  foregoing  opinion,  the 
decree  of  the  district  court  is  affirmed. 


CINCINNATI,  HAMILTON  AND  DAYTON  RAILROAD  CO., 
V.  VILLAGE  OF  BOWLING  GREEN. 

Supreme  Court  of  Ohio,  1879. 

[57  Oh.  St.  336.1]  • 

Error  to  the  Circuit  Court  of  Wood  County. 

This  action  was  brought  in  the  Court  of  Common  Pleas  of  Wood 
count}',  b}'  the  village  of  Bowling  Green,  to  recover  of  the  railroad 
coinpan}',  plaintiff  in  error,  a  sum  of  mone}'  to  reimburse  the  village  for 
expenditures  incurred  hy  it  in  maintaining  electric  lights  at  certain 
places  that  bj'  ordinance  it  had  required  the  railroad  compan}'  to  main- 
tain, and  which  the  latter  had  neglected  to  do. 

The  village  prevailed  in  the  Court  of  Common  Pleas,  and  the  judg- 
ment there  rendered  in  its  favor  was  affirmed  by  the  Circuit  Court.  To 
reverse  the  judgments  thus  rendered  is  the  object  of  the  proceedings  in 
this  court. 

Bradbury,  J.  .  .  .  The  ordinance  in  question  specifies  the  points  at 
which  lights  are  to  be  maintained,  and  prescribes  the  kind  of  light,  and 
the  lamps  and  attachments  to  be  emplo3ed.  Electricity  must  be  used, 
and  the  lamps  and  attachments  must  be  in  all  respects  similar  to  those 
used  in  lighting  the  streets  of  the  village. 

Plaintiff  in  error  contends,  that  these  provisions  are  unreasonable  at 
the  [point]  of  the  power  of  determining  the  kind  of  light  to  be  used, 
and  of  contracting  on  its  own  behalf;  that  the  system  of  lamps  and 
attachments  Which  the  ordinance  prescribes  are  the  subject  of  patents, 
and  that  the  exclusive  right  to  use  them  within  the  village,  has  been 
granted  to  the  Bowling  Green  Electric  Light  and  Power  Company,  and 
that,  tiierefore,  the  plaintiff  in  error  was  put  wholly  within  the  power 
of  such  company  by  the  ordinance,  and  will  be  compelled  to  pay  what- 
ever price  the  company  chooses  to  establish  or  charge  for  the  lights 
required. 

1  This  case  is  abridged.  —  Ed. 


28  CINCINNATI,   HAMILTON,    ETC.    R.   R.   V.   BOWLING  GREEN. 

As  respects  the  objection  to  the  ordinance  on  account  of  its  specif}'- 
ing  the  kind  of  light  to  be  used,  the  statute  —  section  2495,  Revised 
Statutes  —  among  other  provisions,  requires  the  ordinance  to  "  specify 
the  manner  in  which  such  .  .  .  railwaj-  shall  be  lighted."  .  .  .  This 
language  seems  broad  enough  to  authorize  the  municipality  to  prescribe 
the  kind  of  light  to  be  employed  for  that  purpose,  — whether  electricity, 
gas,  or  any  other  material  or  means  that  ma}'  be  reasonabl}'  adapted  to 
the  purpose.  The  power  of  selecting  the  kind  of  light  to  be  used  can 
be  exercised,  of  course,  only  where  more  than  one  kind  is  available. 
This  power  must  reside  somewhere,  either  in  the  railroad  company-  or 
the  municipalit}'.  The  power  to  require  the  lighting  of  a  railroad 
track  is  a  branch  of  the  police  power  of  the  State.  If  the  terms  of  this 
section  (2495)  of  the  Revised  Statutes,  granting  the  power  to  muni- 
cipal bodies  should  not  be  broad  enough  to  expressly  authorize  them  to 
prescribe  the  kind  of  light  to  be  employed,  yet,  as  the  power  to 
compel  a  railroad  company  to  light  its  track  at  all,  implies  authority 
to  require  it  to  be  eflSciently  done,  it  would  seem  to  necessarily  follow 
that,  within  reasonable  limits,  the  power  to  prescribe  the  kind  of  lights 
rests  with  the  municipal  authorities.  They,  of  course,  in  this  respect 
could  not  cast  an  unreasonable  burden  on  the  railroad  compan}'. 

Doubtless,  an  ordinance  would  cast  upon  a  railroad  company  an  un- 
reasonable burden,  and  for  that  reason,  would  be  void,  if  it  prescribed 
an  electric  light,  when  the  municipality  contained  no  electric  plant  or 
other  convenient  means  of  generating  electricity ;  otherwise,  each 
municipality,  large  or  small,  through  which  a  railroad  might  pass, 
could  compel  those  who  operate  the  road  to  erect  a  plant  to  generate 
the  light  thus  required. 

There  was,  however,  in  the  village  of  Bowling  Green,  at  the  time  the 
ordinance  under  consideration  was  passed,  an  electric  light  and  power 
company,  operating  an  electric  plant,  and  therefore  the  means  was  at 
hand  that  would  enable  the  railroad  company  to  comply  with  require- 
ments of  the  ordinance  in  this  respect,  and,  therefore,  such  requirement 
was  not  in  itself  unreasonable. 

Did  the  ordinance  unreasonably  limit  the  right  of  the  railroad  com- 
pany to  contract  on  its  own  behalf,  or  unreasonably  place  it  within  the 
power,  and  subject  it  to  extortion  at  the  hands  of  the  electric  light  and 
power  company,  of  which  it  must  procure  the  lights  ? 

True,  the  railroad  was  required  to  adopt  electricity  as  the  means  of 
illumination,  and  was  confined  to  the  kind  of  lamps  and  their  attach- 
ment, then  in  use  in  said  village.  If  the  exclusive  right  to  use  within 
the  village  these  lamps  and  attachments  had  been  granted  by  the 
patentee  to  the  Bowling  Green  Electric  Light  and  Power  Company, 
and  if  this  company  had  an  absolute  power  to  fix  the  price  that  it  could 
exact  for  the  use  of  its  light  and  lamps,  then  the  contention  of  the  rail- 
road company  would  find  strong  support  in  reason  and  justice.  It  may 
be  conceded,  however,  that  the  lamps  and  their  attachments,  as  wel\ 
as  the  system  of  lighting  in  use  in  the  village  of  Bowling  Green,  were 


CINCINNATI,   HAMILTON,    ETC.    R.   R.   V.   BOWLING   GREEN.  29 

all  protected  by  patents,  and  that  the  Bowling  Green  Electric  Light 
and  Power  Co.  had  the  exclusive  right  to  their  use  within  that  village, 
and  yet  the  power  of  extortion  would  not  follow,  necessarily. 

The  light  and  power  company  have  acquired  in  the  village  rights  that 
are  in  the  nature  of  a  monopoly.  The  use  to  whicn  it  has  devoted  its 
property  is  one  in  which  the  public  have  an  interest,  and  it  requires  the 
use  of  the  streets  and  alleys  of  the  village  to  conduct  and  distribute 
electricity  to  its  lamps  for  illuminating  purposes ;  and,  in  addition  to 
this,  power  to  appropriate  private  property  has  been  conferred  on  it. 
Section  3471,  Revised  Statutes.  Both  reason  and  authority  deny  to  a 
corporation  clothed  with  such  rights  and  powers,  and  bearing  such  re- 
lation to  the  public,  the  power  to  arbitrarily  fix  the  price  at  which  it 
will  furnish  light  to  those  who  desire  to  use  it.  Beach  on  Corporations, 
sections  834,  835,  836  ;  Zanesville  v.  Gas  Light  Co.,  47  Oh.  St.  1 ; 
Munn  V.  IlUnois,  94  U.  S.  113  ;  Spring  Valley  Water  Works  v.  Schot- 
tler  et  al.,  110  U.  S.  347;  Gibbs  v.  Baltimore  Gas  Co.,  130  U.  S.  408  ; 
The  City  of  St.  Louis  v.  The  Bell  Telephone  Co.,  96  Mo.  623;  Ne- 
braska V.  The  Nebraska  Telephone  Co.,  17  Neb.  126  ;  Central  Union 
Telephone  Co.  v.  Bradbury,  106  Ind.  1. 

The  Bowling  Green  Electric  Light  and  Power  Company  was  bound 
to  serve  all  of  its  patrons  alike ;  it  could  impose  on  the  plaintiff  in 
error  no  greater  charge  than  it  exacted  off  others  who  had  used  its 
lights.  The  village  had  authority  to  fix  the  rates  to  be  charged  by  the 
company  for  lights.  Section  2478,  Revised  Statutes.  If  the  village 
authorities  should  fail  to  act  in  this  respect,  and  the  plaintiff  in  error 
and  the  power  and  light  company  could  not  agree  upon  a  price,  the 
latter,  by  an  appeal  to  the  courts  of  the  State  could  compel  the  former 
to  furnish  the  lights  at  a  reasonable  price. 

Therefore,  the  precisions  of  the  ordinance  requiring  the  plaintiff  in 
error  to  use  the  lamps  and  attachments  then  in  use  in  the  village  was 
not  unreasonable.  Notwithstanding  that  the  sole  right  to  use  the 
lamps  and  attachments  prescribed  may  have  been  vested  in  the  Bowl- 
ing Green  Electric  Light  and  Power  Co.,  j'et,  as  that  company  was 
bound  to  furnish  light  to  all  its  patrons  on  terms  that  must  be  both 
reasonable  and  impartial,  the  ordinance  requiring  the  use  of  such 
lamps  and  attachments  should,  in  that  respect,  be  deemed  reasonable. 
The  right  to  make  contracts  on  its  own  behalf  is  doubtless  a  valuable 
one  to  the  plaintiff  in  error,  and  if  there  had  been  two  or  more  electric 
light  plants  in  the  village,  an  attempt  to  dictate  to  plaintiff  in 
error  which^of  them  it  should  choose  might  have  presented  an  interest- 
ing question.  There  was  but  one,  however,  and  the  only  choice  open 
to  plaintiff  in  error,  was  between  building  a  new  plant  or  taking  light  of 
the  company  then  established  in  the  village.  If  that  company  had  an 
exclusive  right  to  use  the  lamps  and  attachments  prescribed,  then  no 
choice  was  open  to  the  plaintiff  in  error,  and  it  would  be  compelled  to 
procure  the  lights  of  that  company.  This,  however,  from  a  practical 
point  of  view,  was  of  little  or  no  concern,  because,  while  the  circum- 


30  JONES   V.   NORTH   GEORGIA   ELECTRIC    COMPANY. 

Stances  surrounding  the  plaintiff  in  error  compelled  it  to  take  the 
lights  of  this  particular  company,  yet  the  latter  was  also  compelled  to 
furnish  them  at  a  reasonable  price.  The  State,  under  these  circum- 
stances, must  yield  its  police  power,  a  power  existing  for  the  benefit 
of  all  its  citizens,  or  the  right  of  a  railroad  company  to  an  unlimited 
power  of  contracting  must  give  way.  This  is  not  the  only  instance 
in  which  its  powers  in  this  respect  are  curtailed  for  the  public  good. 
This  is  notably  the  case  in  respect  of  its  power  to  contract  concern, 
ing  the  transportation  of  freight  and  passengers. 

The  ordinance  in  question  requires  the  lights  to  be  furnished  by 
the  plaintiff  in  error,  shall  be  kept  lighted  during  the  same  hours 
tiiat  the  street  lamps  of  the  village  may  be  kept  lighted ;  this  we 
think  is  sufficiently  definite  to  clearly  inform  the  plaintiff"  in  error  of 
what  was  required  of  it  in  this  respect. 

The  ordinance,  we  think,  imposes  no  unreasonable  burdens  on 
the  plaintiff  in  error.  Judgment  affirmed. 


JONES  V.  NORTH  GEORGIA  ELECTRIC  COMPANY. 
Supreme  Court  of  Georgia,  1906. 

[125  Ga.  618] 

Atkinson,  J.  The  right  of  the  court  to  refuse  to  gi'ant  the  injunc- 
tion depends  upon  the  constitutionalit}-  of  the  act  of  1897  (Acts  1897, 
p.  68).  The  act  is  called  into  question  upon  one  ground  onlj',  that  is 
to  say,  it  is  challenged  as  being  violative  of  that  oJause,  found  substan- 
tialh'  identical  in  the  constitution  of  this  State  and  in  the  constitution 
of  the  United  States,  which  guarantees  that  "  No  person  shall  be  de- 
prived of  life,  liberty,  or  propert}',  except  by  due  process  of  law."  It 
is  insisted  that  the  act  violates  that  provision  of  the  two  constitu- 
tions for  a  single  reason,  namely,  that  it  is  an  attempt  to  authorize  in- 
dividuals to  exercise  the  State's  right  of  eminent  domain  for  other  than 
public  purposes.  If  this  contention  is  well  founded,  it  is  manifest  that 
the  act  would  be  unconstitutional,  because  it  is  elementar}-  that  the 
State's  right  of  eminent  domain  can  never  be  exercised  for  other  than 
such  purposes.  Our  State  constitution  provides  that  the  right  of  em- 
inent domain  shall  never  be  abridged.  Constitution,  art.  4,  sec.  2,  par. 
2  (Civil  Code,  §  5788).  It  is  settled  law  that  the  State  may  primarily 
exercise  the  right  for  any  public  purpose,  but  there  is  no  limitation 
which  prevents  the  State  by  legislation  from  delegating  to  others  the 
authority  to  exercise  its  right  of  eminent  domain  for  any  public  use  or 
purjwse.  The  right  of  eminent  domain  is  inherent  in  the  State,  but  lies 
dormant  until  quickened  into  activity  by  appropriate  legislation.  See 
United  States  v.  Jones,  109  U.  S.  513 ;  Hand  Gold   Mining  Co.  v. 


JONES  V.   NORTH   GEORGIA   ELECTRIC    COMPANY.  31 

Parker,  59  Ga.  423;  Cooley's  Const.  Lim.  (7th  ed.),  759.  lu  the 
Hand  Gold  Mining  Co.  case,  supra,  it  is  said :  "  The  right  of  eminent 
domain  vtxB.y  be  exercised  by  the  General  Assembh'  in  this  State  when 
it  is  for  the  public  good,  either  through  the  officers  of  the  State  or 
through  the  medium  of  corporate  bodies  or  b}'  means  of  individual 
enterprise."  See  also  Hopkins  v.  Fla.  Cen.  R.  Co.,  97  Ga.  107; 
Mims  V.  Macon  &  Western  R.  Co.,  3  Ga.  338.  Thus  we  see  it  is  not 
so  much  the  character  of  the  person  exercising  the  right  as  the  uses 
to  which  the  object  is  to  be  applied.  See  also,  in  this  connection, 
Chestatees  Pyrites  Co.  v.  Cavenders  Creek  Gold  Mining  Co.,  119  Ga. 
354.  It  is  the  State's  right  alwaj's,  and  in  the  discretion  of  the  legis- 
lature as  to  whom  authority  to  exercise  it  shall  be  delegated,  but  the 
character  of  the  purposes  for  which  the  power  shall  be  exercised  is 
altogether  a  different  question.  The  legislative  discretion  in  granting 
the  right  is  confined  to  uses  of  public  necessitj'.  In  no  case  can  the 
legislature  authorize  the  State's  right  of  eminent  domain  to  be  em- 
ployed for  a  purely  private  purpose.  The  announcement  just  made 
needs  no  argument  in  its  support;  it  follows  from  the  fundamental  law 
which  forbids  the  taking  of  private  property  except  for  public  purposes. 
"The  definition  given  of  the  right  of  eminent  domain  implies  that  the 
purpose  for  which  it  maj'  be  exercised  must  not  be  a  mere  private 
purpose ;  and  it  is  conceded  on  all  hands  that  the  legislature  has  no 
power,  in  any  case,  to  take  the  property  of  one  individual  and  pass  it 
over  to  another  without  reference  to  some  use  to  which  it  is  to  be  applied 
for  the  public  benefit.  'The  right  of  eminent  domain,'  it  has  been  said, 
'  does  not  imply  a  right  in  the  sovereign  power  to  take  the  property  of 
one  citizen  and  transfer  it  to  another,  even  for  a  full  compensation, 
where  the  public  interest  will  be  in  no  way  promoted  by  such  transfer." 
Cooley's  Const.  Lira.  (7th  ed.),  763. 

We  now  come  straight  to  the  inquirj'  as  to  whether  this  act  attempts, 
under  guise  of  the  law  of  eminent  domain,  to  authorize  a  taking  of 
property  from  an  owner  against  his  will  for  other  than  a  public  purpose. 
Judge  CooLEY  declares,  that  "  We  find  ourselves  somewhat  at  gea, 
however,  when  we  undertake  to  define,  in  the  light  of  judicial  decisions, 
what  constitutes  a  public  use,"  and,  after  consideration  of  able  opinions 
on  the  subject,  evolves  the  following  general  rule  for  the  ascertainment 
of  the  character  of  the  use  :  "  The  reason  of  the  case  and  the  settled 
practice  of  free  governments  must  be  our  guides  in  determining  what  is 
or  is  not  to  be  regarded  a  public  use  ;  and  that  onl}'  can  be  considered 
such  where  the  government  is  supplying  its  own  needs,  or  is  furnishing 
facilities  for  its  citizens  in  regard  to  those  matters  of  public  necessity', 
convenience,  or  welfare,  which,  on  account  of  their  peculiar  character, 
and  the  difficulty  —  perhaps  impossibility — of  making  provision  for 
them  otherwise,  it  is  alike  proper,  useful,  and  needful  for  the  govern- 
ment to  provide."  Cooley's  Const.  Lim.  (7th  ed.),  766-769.  In  apply- 
ing this  general  rule,  we  must  bear  in  mind  that  "  public  necessit}'" 
and  "  public  convenience"  and  "  public  welfare"  are  to  be  accommo- 
dated under  so  many  different  conditions  that  there  can  be  no  definite 


32  JONES  V.   NORTH   GEORGIA   ELECTRIC  COMPANY, 

and  fixed  state  of  facts  which  will  invariably  determine  the  character 
of  the  use.  The  most  that  can  be  done 'is  to  recognize  the  general 
rule  that  the  subserving  of  public  necessity  or  public  convenience  or 
public  welfare  under  conditions  which  render  the  State's  intervention 
necessary  is  a  condition  precedent  to  the  exercise  by  an  individual  of  the 
State's  right  of  eminent  domain,  and  let  each  case  as  it  arises  under  its 
particular  attendant  conditions  be  determined  by  that  rule.  See  Clark 
V.  Nash,  198  U.  S.  361.  The  constant  change  of  conditions  accounts 
in  a  large  measure  for  the  great  conflict  in  judicial  expression  upon  the 
subject.  In  fact  there  are  hardly  two  cases  alike,  and  there  is  of  ne- 
cessity a  diversit}'  in  the  decisions  upon  the  subject;  but  underlying 
nearly  the  entire  current  of  precedent  ma}-  be  seen  a  faithful  adherence 
to  the  general  rule  which  has  been  quoted.  Applying  the  rule  to  this 
particular  case,  it  seems  manifest  that  the  public  necessity  and  public 
convenience  and  public  welfare  are  to  be  subserved,  and  that  for  the 
accomplishment  of  these  purposes  it  is  necessary*  and  proper  for  the 
State  to  make  suitable  provision,  by  the  delegation  of  authority,  to  con- 
demn such  property  as  may  be  needful  for  carrjing  those  purposes  into 
execution.  By  the  terms  of  the  act  one  of  its  direct  purposes  is  to  call 
into  use  the  great  water-powers  of  this  State,  in  order  to  accommodate 
the  necessities  of  the  people.  The  present  conditions  are  such  that, 
under  modern  appliances,  this  result  can  be  accomplished  in  no  way 
except  that  which  is  proposed.  It  involves  the  problem  of  creating 
light,  heat,  and  power  at  a  remote  point,  for  delivery  by  transmission 
over  wires  to  the  consuming  public  in  neighboring  and  distant  districts 
and  cities,  thus  becoming  necessary  to  pass  over  the  lands  of  others. 
Thus  we  see  the  public  purpose  is  twofold  ;  for  it  has  the  object,  first, 
to  develop  the  resources  of  the  State  by  bringing  its  great  water- 
powers  from  a  condition  of  waste  to  one  of  profitable  employment; 
and,  second,  to  suppl}'  the  demands  and  necessities  of  the  public  with 
light,  heat,  and  power.  There  are  many  respectable  authorities  that 
hold  that  the  right  of  eminent  domain  may  be  exercised  wherever  the 
public  interest  will  be  subserved,  when  directed  to  purposes  tending  to 
the  development  of  the  natural  resources  of  the  State,  or  tending  to  the 
accommodation  of  the  public  welfare  and  convenience  ;  and  it  seems  to 
us  that  when  the  legislature  saw  the  opportunity  of  directing  the  atten- 
tion of  science,  industry,  and  art  to  the  water-powers  of  the  State, 
with  a  view  to  supplying  our  people  with  such  utilities  as  light,  heat, 
and  ixjwer  for  the  promotion  of  our  domestic  and  industrial  welfare,  its 
action  in  lending  the  State's  aid  to  the  end  of  affording  the  necessary 
right  of  way  over  the  private  lands  of  individuals  was  fully  justified 
under  the  law  which  permits  the  taking  of  private  property  for  public 
uses.  We  do  not  mean  to  sa}*  that  a  use  which  only  remotely  tends  to 
the  public  good  or  convenience  will  justify  the  exercise  of  the  State's 
right  of  eminent  domain.  Such  a  position  would  lead  to  unreasonable 
results,  for  there  is  scarcely  an  industrial  enterprise  which  has  not  the 


JONES   V.   NORTH  GEORGIA   ELECTRIC   COMPANY.  33 

features  of  public  benefit;  but  such  is  not  the  case  which  we  now  have 
under  consideration.  Here  is  the  direct  benefit  to  the  State  in  developing 
its  natural  resources,  and  here  are  the  resulting  uses  to  the  public  which 
are  so  direct  and  far-reaching  as  to  extend  to  ever}-  industrial  enter- 
prise and  to  the  home  of  every  individual.  We  are  safe  in  holding 
that  under  the  conditions  of  this  day  and  time,  the  legislature  did  not 
unconstitutionally  exercise  its  power  in  passing  the  act  now  under 
review.  This  act  is  only  directed  to  a  coercion  of  those  who  will  not 
for  the  common  good  submit  their  property  to  the  right  of  passage. 
It  provides  just  compensation  to  them,  but  authorizes  compulsory  sub- 
mission to  the  interests  and  welfare  of  the  State  and  the  good  of  the 
public.  It  ma}'  be  noted  that  the  pretension  of  the  act  is  to  go  no 
further  than  to  provide  for  the  acquisition  of  an  easement  over  the  land 
of  another,  which  is  authorized  to  be  enjoyed  only  for  a  public  use. 
Indeed,  the  constitution  prohibits  stny  further  taking  of  the  owner's 
property  without  his  consent,  and  it  must  follow  that  an}'  use  of  the 
property  for  a  purely  private  purpose  would  not  fall  within  the  pale  of 
the  act.  Such  private  use,  if  any  should  be  attempted,  could  not  be 
justified  under  the  act,  and  would  be  a  trespass  as  against  the  owner. 
The  possibility  of  a  use  which  is  not  authorized  by  the  act  could  not 
serve  to  render  unconstitutional  those  provisions  of  the  act  which  are 
the  real  object  of  the  legislation  and  which  are  themselves  consitutional. 
It  is  readily  seen  that  one  of  the  essential  and  constituent  obligations 
upon  the  part  of  the  individual  who  attempts  to  exercise  the  right  of 
eminent  domain  under  this  act  is  that  he  shall  serve  all  of  the  public 
fairly  and  without  discrimination.  Without  such  public  service,  his 
right  would  have  no  sanction  under  the  act.  The  conclusion  just  an- 
nounced follows  as  a  matter  of  logic  from  a  consideration  of  the  case 
at  bar,  and  is  well  supported  by  authority.  See,  in  this  connection. 
Central  Union  Telephone  Co.  v.  Bradbury,  106  Ind.  I  ;  State  ex  rel. 
Webster  v.  Telephone  Co.,  17  Neb.  126  ;  Zanesville  v.  Gaslight  Co.,  47 
Ohio  St.  1 ;  Griflfin  v.  Goldsboro  Water  Co.,  122  N.  C.  206;  City  of 
St.  Louis  V.  Bell  Telephone  Co.,  96  Mo.  623;  Spring  Valley  Water- 
works V.  Schottler,  110  U.  S.  347;  Gibbs  v.  Consolidated  Gas  Co.,  130 
U.  S.  408  ;  Munn  v.  111.,  94  U.  S.  113  ;  Snell  v.  Clinton  Electric  Co.,  89 
Am.  St.  R.  341 ;  Cincinnati,  H.  &  D.  R.  Co.  v  Bowling  Green,  57  Ohio 
St.  336  ;  2  Beach  on  Priv.  Corp.,  §§  834-836.  Under  the  particular 
conditions  then  existing,  this  court  in  Loughbridge  v.  Harris,  42.  Ga. 
500,  said:  "We  do  not  think  a  mill,  although  it  has  some  of  the  attri- 
butes of  public  use  and  is  regulated  by  law  for  certain  defined  purposes, 
can  be  regarded  such  public  use  as  the  constitution  recognizes,  to  au- 
thorize the  exercise  of  this  great  constitutional  power."  Afterwards, 
in  the  case  of  Hand  Gold  Mining  Co.  v.  Parker,  59  Ga.  424,  under 
the  particular  conditions  then  existing,  this  coui't  held  that  a  provision 
in  a  charter  of  a  mining  company  authorizing  the  company,  upon 
just  compensation  to  the  owner,  to  condemn  over  the  lands  of  another 

3 


34  DUNN  V.  WESTERN   UNION  TELEGRAPH   COMPANY. 

a  right  of  way  for  the  carriage  of  water  necessarily  used  in  gold  mining, 
was  not  an  unconstitutional  exercise  of  the  right  of  eminent  domain. 
This  ruling  was  put  upon  the  principle  that  the  development  of  the 
mineral  resources  of  the  State,  and  the  production  of  the  metal  in 
which  our  constitutional  currency  is  stamped,  are  of  public  benefit. 
The  case  last  cited  distinguishes  the  case  of  Loughbridge  v.  Harris. 
Upon  the  subject  of  what  is  or  is  not  a  public  use,  the  following  other 
decisions  of  this  court  ma}*  be  mentioned :  Ma3or  of  Macon  v.  Harris, 
73  Ga.  448;  Butler  v.  Thomasville,  74  Ga.  570;  Hopkins  v.  Fla. 
Cen.  R.  Co.,  97  Ga.  113;  Garbutt  Lumber  Co.  v.  Georgia  and  Ala- 
bama Ry.,  Ill  Ga.  714;  Jones  v.  Venable,  120  Ga.  1.  These  cases 
are  not  in  their  facts  like  the  case  at  bar ;  and  in  view  of  the  difference, 
and  inasmuch  as  these  cases  arose  under  different  conditions  from 
those  which  at  this  time  command  our  attention,  we  do  not  deem  it 
necessar}'  to  make  further  reference  to  them.  The  act  being  constitu- 
tional, and  the  facts  showing  the  contemplated  use  of  the  land  of  the 
plaintiff  to  be  designed  for  no  other  than  public  purposes,  it  follows 
that  the  court  did  not  err  in  refusing  the  injunction.^ 

Judgment  affirmed.    All  the  Justices  concur. 


DUNN  V.   WESTERN  UNION  TELEGRAPH   COMPANY. 
CouBT  OF  Appeals  of  Georgia,  1908. 

[2  Ga.  App.  845.1] 

Powell,  J.  The  grave  question  remaining  in  the  case  is  whether  the 
petition  sets  forth  a  cause  of  action  agajnst  the  telegraph  company. 
The  gist  of  the  action  is  not  the  failure  or  refusal  of  the  telegraph  com- 
pany to  transmit  a  message  tendered  to  it,  but  the  alleged  disrespect- 
ful, humiliating,  and  insulting  treatment  by  its  agent,  of  a  member  of 
the  general  public,  lawfully  in  its  office  on  business  with  the  company. 
The  contention  is  that  the  entire  damage  alleged  is  such  as  affects  only 
the  feelings  of  the  plaintiff,  and  that  damages  for  mental  suffering  can- 

1  Accord:  Walker  v.  Shasta  Power  Co.,  160  Fed.  856;  Jones  i'.  No.  Ga.  El.  Co., 
125  Ga.  618,  54  S.  E.  85  ;  SammonB  v.  Kearney  Power  &  Irr.  Co.  (Neb.),  110  N.  W. 
308 ;  Rockingham  Co.  Light,  Heat  &  Power  Co.  v.  Hobbs,  72  N.  H.  53 ;  Re  Niagara 
L.  &  E.  Power  Co.,  97  N.  Y.  Snpp.  853 ;  Grande  Rounde  Electrical  Co.  v.  Drake,  46 
Oreg.  243.  Contra  Brown  v.  Gerald,  101  Me.  351  ;  State  ex  rel.  v.  Superior  Court, 
Wash..  85  Pac.  666.  See  also  Fallsburg  Power  &  Mfg.  Co.  v.  Alexander,  101  Var.  98; 
Avery  v.  Vermont  Electric  Co.,  75  Vt.  235.— Eu. 


DUNN   V.   WESTERN   UNION   TELEGRAPH   COMPANY.  35 

not  be  recovered  unless  there  is  a  concomitant  injury  to  person  or 
purse.  The  further  contention  is  made  that  no  breach  of  duty  to  the 
plaintiff  is  shown.  We  will  dispose  of  these  contentions  in  inverse 
order. 

A  telegraph  company  is  a  private  corporation  performing  a  public 
duty;  and  whether  it  is  a  common  carrier,  a  bailee,  or  a  person 
engaged  in  a  business  sui  generis,  is  immaterial.  It  is  a  public  service 
company,  one  engaged  in  a  business  of  such  nature  as  to  clearly  dis- 
tinguish it  from  those  purely  private  persons  and  corporations  who 
may  conduct  their  own  business  in  their  own  way.  All  such  corpo- 
rations, on  account  of  the  interest  which  the  public  has  in  the  manner 
in  which  their  business  is  conducted,  as  well  as  on  account  of  the  spe- 
cial franchises  enjoyed  by  them,  must  observe  certain  rules  of  dealing 
with  the  public.  These  rules,  and  the  corresponding  duties  which  are 
implied  from  the  nature  of  the  calling,  are  not  always  declared  by  spe- 
cific statute,  but  are  frequently  enforced  by  the  courts  as  a  part  of  the 
general  law  or  of  the  common  law.  "  Upon  each  person,  in  every  posi- 
tion he  occupies,  peculiar  duties  are  imposed,  each  demanding  its  dis- 
charge with  an  emphasis  accentuated  or  modified  by  the  attendant 
circumstances."  Ray,  Negligence  of  Imposed  Duties,  Personal,  §  1 : 
"  One  of  the  great  requirements  which  the  government  demands  of 
every  institutiou  impressed  with  a  public  interest  —  and  one  which  is 
thrown  over  every  citizen  as  a  great  and  protective  shield  —  is  the 
duty  to  act  impartially  with  all.  They  are  under  obligations  to  extend 
their  facilities  to  all  persons,  on  equal  terms,  who  are  willing  to  comply 
with  their  reasonable  regulations,  and  to  make  such  compensation  as 
is  exacted  from  others  in  like  circumstances."  Jones,  Telegraph  and 
Telephone  Companies,  §  236.  From  this  principle,  universally  recog- 
nized, springs  the  corollary  that  all  such  persons,  natural  and  arti- 
ficial, shall  afford  to  such  members  of  the  public,  as  have  occasion 
to  transact  with  them  business  of  the  nature  they  are  holding  them- 
selves out  as  being  accustomed  to  do,  safe  and  decent  access  to  the 
places  opened  up  for  the  transaction  of  the  business  in  question.  This 
safety  does  not  not  mean  mere  physical  safety ;  nor  this  decency 
mere  absence  of  obscenity,  but  by  the  employment  of  the  expression 
"safe  and  decent  access"  it  is  intended  to  connote  also  the  notion 
of  freedom  from  abuse,  humiliation,  insult,  and  other  unbecoming  and 
disrespectful  treatment.  A  member  of  the  public  is  not  to  be  deterred 
from  transacting  or  offering  to  transact  business  which  the  law  com- 
pels a  telegraph  company  to  accept  impartially  from  every  person, 
by  reason  of  the  fact  that  he  cannot  enter  the  public  office  without 
being  subjected  to  insult  or  personal  affront.  A  violation  of  this 
duty  has  occurred  whenever  a  person  entering  the  telegraph  office 
for  the  purpose  of  sending  a  message  has  been  met  with  disrespect- 
ful or  insulting  treatment  at  the  hands  of  the  company's  agent.  It 
is  immaterial  that  the  person  thus  injured  had  no  personal  interest 
in  the  message,  that  he  was  the  mere  agent  of  another ;  for  there  is  no 


36  STATE   EX  EEL.   V.   CITIZENS*   TELEPHONE   CO. 

snch  requirement  as  that  persons  desiring  to  transact  business  with 
public  utility  corporations  shall  do  so  in  person.  The  fact  that  the 
right  of  respectful  treatment,  while  attempting  to  do  business  with  a 
public  service  company,  follows  as  the  natural  sequence  from  the  right 
to  be  served  impartially  and  at  all  reasonable  times,  seems  to  render 
the  citation  of  authority  as  to  the  existence  of  this  right  of  respectful 
treatment  unnecessary.  We  do,  however,  call  attention  to  the  Georgia 
cases  of  Gasway  v.  Atlanta  &  West  Point  R.  Co.,  58  Ga.  216,  221  ; 
Georgia  R.  Co.  v.  Richmond,  93  Ga.  495,  502.  It  will  be  noted  that 
while  these  were  actions  against  carriers,  in  neither  <;ase  did  the  lia- 
bility depend  upon  the  fact  that  the  plaintiff  was  a  passenger.  In 
Gasway's  case  he  was  attempting  to  check  baggage  as  agent  for  his 
wife ;  in  Richmond's  case  he  had  called  at  the  passenger  station  to  see 
about  certain  trunks ;  and  the  court,  in  deciding  the  case,  took  pains 
to  call  attention  to  the  fact  that  the  relation  of  carrier  and  passenger 
did  not  exist  at  that  time.  We  might  multiply  citation  of  precedents, 
but  these  are  sufficient.^ 


STATE  EX  BEL.   GWYNN  v.  CITIZENS'  TELEPHONE  CO. 
Supreme  Court  of  South  Carolina,  1901. 

[61  S.  C.  83.2] 

Petition  by  J.  B.  Gwynn  for  mandamus  against  Citizens'  Telephone 
Co.,  requiring  it  to  place  a  telephone  in  his  store  and  in  his  residence. 
From  order  refusing  the  writ,  petitioner  appeals. 

Mr.  Chief  Justice  McIver.  This  was  an  application,  addressed  to 
the  Circuit  Court,  for  a  writ  of  mandamus,  requiring  the  respondent  to 
place  a  telephone  in  the  relator's  grocery  store  and  one  in  his  residence, 
in  the  city  of  Spartanburg,  and  to  connect  them  properly  with  its  ex- 
change and  its  subscribers,  and  to  do  all  acts  necessarj'  to  afford  the 
relator  the  like  service  and  telephonic  communication  afforded  to  its 

1  This  case  is  abridged.  —  Ed. 


STATE   EX   REL.   V.   CITIZENS*   TELEPHONE   CO.  37 

other  subscribers.  The  application  was  refused  b}'  the  circuit  judge, 
and  the  relator  appealed  to  this  court  on  the  several  grounds  set  out  in 
the  record,  which  it  is  not  necessar}'  to  state  here,  as  it  will  be  suffi- 
cient to  consider  the  several  questions,  as  stated  by  counsel  for  respond- 
ent, in  his  argument  here,  which  are  presented  bj'  this  appeal. 

As  is  said  by  the  circuit  judge  in  his  decree,  "  There  is  practicallj* 
no  dispute  as  to  the  facts,"  which  ma^'  be  stated,  substantially,  as  fol- 
lows: The  relator  is  now  and  has  been  since  the  28th  of  June,  1898, 
engaged  in  the  mercantile  business,  carrying  on  a  retail  grocery  store 
in  the  cit}'  of  Spartanburg,  and  occupies  a  residence  in  said  city  ;  that 
the  respondent,  on  the  16th  day  of  August,  1898,  became  a  corpora- 
tion under  the  laws  of  this  State,  for  the  purpose  of  owning,  construct- 
ing, using,  and  maintaining  electric  telephone  lines  and  exchange  within 
the  city  of  Spartanburg,  and  as  such  is  now  and  was  at  the  time  of  the 
commencement  of  this  proceeding  engaged  in  the  said  business,  having 
established  an  exchange  in  said  cit}',  from  which  connections  were  made 
to  telephone  instruments  in  offices,  places  of  business  and  residences 
of  its  subscribers ;  that  the  city  council  of  Spartanburg  has  authorized 
the  respondent  to  erect  poles  in  the  streets  of  the  city  for  the  purpose 
of  transporting  news  over  its  wires  to  its  subscribers,  having  a  sj'stem 
of  wires  throughout  the  city,  connected  with  telephone  instruments  fur- 
nished b}'  it  to  its  subscribers  ;  that  whenever  a  person  desires  a  tele- 
phone, it  is  placed  in  the  office,  residence,  or  place  of  business  of  the 
applicant,  at  the  expense  of  the  respondent,  with  authority  to  the  sub- 
scriber to  use  the  same,  upon  certain  rates  and  terms,  for  the  purpose 
of  telephonic  communication  with  others  ;  that  some  time  in  the  year 
1899,  the  respondent  placed  telephones  in  relator's  residence  and  gro- 
cery store,  giving  proper  connections  with  respondent's  exchange  and 
its  subscribers  or  customers  throughout  the  city  of  Spartanburg  and 
elsewhere ;  that  this  was  done  under  an  agreement  with  the  relator 
that  he  would  use  respondent's  telephone  exclusively,  and  not  the  tele- 
phone of  the  Bell  Telephone  Company,  and  that  certain  of  respond- 
ent's subscribers  in  the  said  cit}'  of  Spartanburg,  including  most  of  the 
grocerymen,  were  furnished  with  telephones  by  the  respondent,  under 
a  similar  agreement,  but  some  of  respondent's  subscribers,  including 
some  merchants,  ph3'sicians,  and  others  and  one  groceryman,  whose 
place  of  business  was  on  the  same  street  of  said  city  as  the  grocer}' 
store  of  relator,  were  supplied  with  telephones  by  respondent  under 
agreements  which  contained  no  such  stipulation  as  to  the  exclusive  use 
of  respondent's  telephones,  and  they  were  using  both  telephones ;  that 
on  or  about  the  6th  of  February,  1900,  the  respondent  learning  that  the 
relator  had  purchased  Holland's  market,  in  which  there  was  a  tele- 
phone placed  there  by  the  Southern  Bell  Telephone  Company,  a  cor- 
poration duly  chartered  under  the  laws  of  this  State,  and  that  said 
market  immediately  adjoined  relator's  grocery  store,  and  that  relator 
had  cut  a  door  through  the  wall  separating  his  grocery  store  from  said 
market,  thus   opening  a  means  of  communication   between   the   two 


153039 


38  STATE   EX   EEL.   V.   CITIZENS*   TELEPHONE   CO. 

Structures,  immediately  removed,  against  tlie  protest  of  the  relator,  the 
telephones  which  the  respondent  had  previousl}'  placed  in  relator's 
grocery  store  and  residence,  for  the  avowed  purpose  of  preventing 
tlie  relator  from  using  respondent's  telephones  while  he  was  using  the 
Bell  Telephone  —  respond^'nt  claiming  that  under  its  agreement  with 
relator  he  was  bound  to  confine  himself  to  the  use  of  respondent's 
telephones ;  that  on  or  about  the  Stii  of  February,  1900,  the  relator 
tendered  to  respondent  the  amount  due  for  the  past  use  of  respond- 
ent's telephones,  which  was  accepted,  and  that  relator  thereupon  de- 
manded that  respondent  place  one  of  their  telephones  in  his  grocery 
store  and  one  in  his  residence,  with  proper  connections  with  respond- 
ent's exchange  and  its  subscribers  ;  but  the  respondent  refused  to  com- 
ply with  such  demand  unless  the  relator  would  agree  to  use  respondent's 
telephones  exclusivelj',  and  not  use  the  telephone  which  had  been  placed 
in  said  market  by  the  Bell  Telephone  Company. 

The  respondent,  in  its  answer,  alleges  :  "  That  its  supply  of  telephone 
instruments  is  limited,  and  that  it  is  with  difficulty  that  this  respondent 
can  furnish  such  instruments  to  all  applicants  therefor.  That  even  if 
the  respondent  was  legally'  bound  to  furnish  such  instruments  now,  it 
would  be  impossible  for  it  to  do  so  within  less  than  sixty  days,  for  the 
reason  of  its  inabiUt}'  to  enlarge  its  switch-board."  But  as  this  allega- 
tion  is  not  responsive  to  any  allegation  contained  in  relator's  petition, 
and  was  not  sustained  b}'  any  evidence,  so  far  as  the  "Case"  shows,  it 
cannot  now  be  considered.  Beside,  this  court,  having  reached  the  con- 
clusion, as  will  presentl}'  appear,  that  the  relator  is  entitled  to  the  7nan-' 
damns  for  which  purpose  the  case  will  be  remanded  to  the  Circuit  Court, 
with  instructions  to  carry  out  the  views  herein  announced,  that  court 
can,  in  its  order  directing  the  writ  of  mandamus  to  be  issued,  make 
such  provision,  by  giving  a  reasonable  time  within  which  the  duty 
sought  to  be  enforced  shall  be  performed,  provided  the  fact  be  as 
alleged  in  the  foregoing  quotation  from  respondent's  answer. 

We  will  next  proceed  to  consider  the  several  questions  of  law,  grow- 
ing out  of  the  facts  above  stated,  and  presented  hy  this  appeal.  These 
questions  are  thus  stated  in  the  argument  here,  on  the  part  of  the  re- 
spondent, and  we  propose  to  adopt  that  statement.  1st.  Is  the  de- 
fendant telephone  company,  in  any  sense,  a  common  carrier?  2.  Can 
the  defendant  telephone  company  be  required,  in  any  case,  against  its 
will,  to  supply  one  of  its  instruments  to  petitioner  ?  3.  Can  the  de- 
fendant telephone  compan}'  be  required  by  mandamus,  under  the  cir- 
cumstances of  this  case,  to  so  furnish  its  instruments  to  petitioner? 

To  dispose  of  the  third  question,  it  will  be  necessary  to  recur  some- 
what to  "  the  circumstances  of  this  case."  The  undisputed  facts  are 
that  the  respondent,  in  the  exercise  of  its  franchise  conferred  by  its 
charter,  had  established  a  telephone  business  in  the  city  of  Spartan- 
burg, and  had  erected  its  poles  and  strung  its  wires  in  and  along  the 
streets  of  said  cit}',  and  thus  had  become,  at  least,  a  quasi  common 
carrier  of  news,  and  as  such  was  under  an  obligation  to  serve  all  alike 


STATE   EX  EEL.   V.   CITIZENS'   TELEPHONE   CO.  39 

who  applied  to  it  witliin  reasonable  limitations,  without  any  discrimi- 
nation whatsoever.  When,  therefore,  the  relator  applied  to  the  re- 
spondent to  replace  the  telephone  instruments  in  his  grocer}'  store  and 
in  his  residence,  from  whence  they  had  been  removed  by  the  defendant 
company  but  a  few  days  before,  the  respondent  was,  in  our  opinion, 
bound  to  compl}'  with  such  demand,  under  the  obligations  to  the 
public  which  it  had  assumed.  The  reason  given  for  its  refusal  — 
that  the  relator  refused  to  agree  that  he  would  use  respondent's  tele- 
phone system  Exclusively  —  was  not  sufficient  to  relieve  it  from  its 
obligation  to  serve  the  public,  of  which  the  relator  was  one,  without 
any  discrimination  whatsoever ;  and  especially  is  this  so  when  it  was 
admitted  that  the  respondent  was,  at  the  time,  affording  to  one  per- 
son, at  least,  who  was  engaged  in  the  same  business  as  that  of  the 
relator,  whose  place  of  business  was  on  the  same  street  of  the  same 
city,  the  same  facilities  which  the  relator  demanded,  without  requiring 
any  such  stipulation  as  that  required  of  the  relator,  but  who  was,  in 
fact,  using  both  telephone  systems.  It  seems  to  us  that  the  respond- 
ent, after  offering  to  the  public  its  telephone  system  for  the  transmis- 
sion of  news,  would  have  no  more  right  to  refuse  to  furnish  the  relator 
its  facilities  for  the  transmission  of  news  unless  he  would  agree  not  to 
use  the  Bell  Telephone  system  in  operation  in  the  same  cit}',  but  use 
exclusivel}'  respondent's  system,  than  a  railway  company  would  have 
to  refuse  to  transi)ort  the  goods  of  a  shipper,  unless  such  shipper  would 
agree  to  patronize  its  line  exclusively  and  not  give  any  of  its  business 
to  an}'  competing  railway  line.  Nor  does  the  fact  (if  fact  it  be)  that 
the  relator  had  committed  a  breach  of  its  previous  contract  with  re- 
spondent, when  he  purchased  Holland's  market,  in  which  an  instrument 
of  the  Bell  Telephone  Company  had  been  placed,  and  had  thereby  ac- 
quired the  right  to  use  the  Bell  Telephone,  afford  any  reason  why  the 
respondent  should  decline  to  comply  with  relator's  demand  to  furnish 
his  grocery  store  and  residence  with  its  telephone  instruments.  If  the 
relator  had  committed  any  breach  of  its  previous  contract  with  the  re- 
spondent of  which  the  latter  had  any  legal  right  to  complain,  its 
remedy,  as  was  said  in  one  of  the  cases  which  we  have  consulted,  was 
by  an  action  to  recover  damages  for  such  breach  of  contract,  but  not 
by  refusing  to  perform  its  obligation  to  the  public,  of  which  the  relator 
was  one.  As  to  the  other  reason  suggested  why  the  mandamus  prayed 
for  should  not  issue  under  the  circumstances  of  this  case,  to  wit :  that 
respondent  did  not  have  the  means  to  comply  with  the  demand  of  the 
relator  withih  less  than  sixty  days,  it  is  only  necessary  to  repeat  what 
we  have  said  above :  that  there  does  not  appear  to  be  any  evidence  in 
the  "Case"  to  sustain  the  fact  upon  which  this  suggestion  is  based, 
and,  therefore,  it  cannot  now  be  considered.  Besides,  as  is  said  above, 
that  is  a  matter  which  may  be  considered  when  the  case  goes  back  to 
the  Circuit  Court,  which  can,  in  ordering  the  mandamus  to  issue,  as 
herein  directed,  make  suitable  provision  for  allowing  respondent  reason- 
able time,  if  such  sliall  be  shown  to  be  necessary,  to  comply  with  the 
relator's  demand. 


40  SHEPARD   V.   GOLD   STOCK  AND  TELEGRAPH   CO. 

As  to  the  position  taken  in  the  argument  —  that  mandamus  is  not 
the  proper  remedy  —  we  think  it  entirely  clear,  both  upon  principle  and 
authority,  that  m,andamus  is  the  appropriate  remedy  in  a  case  of  this 
kind. 

The  judgment  of  this  court  is,  that  the  judgment  of  the  Circuit  Court 
be  reversed  and  that  the  case  be  remanded  to  that  court,  with  instruc- 
tions to  carry  out  the  views  therein  announced.^ 


SHEPARD  V.  GOLD  STOCK  AND  TELEGRAPH  CO. 
SuPKEME  Court  of  New  Yokk,  1885. 

[38  Hun,  338.] 

Appeal  from  an  order  vacating  an  injunction  restraining  the  defend 
ant  from  removing  the  gold  and  stock  reporting  instruments  from  the 
rooms  of  the  plaintiff. 

Dykman,  J.  The  object  of  this  action  is  to  restrain  the  defendant 
from  removing  the  gold  and  stock  reporting  instruments  from  the  plain- 
tiff's place  of  business,  and  a  preliminary  injunction  was  obtained 
which  did  forbid  such  removal.  That  order  was  vacated  at  Special 
Term,  and  we  have  an  appeal  from  that  order.  The  appeal  is  without 
merit.  In  the  contract  by  which  the  plaintiff  procured  the  possession 
of  the  instruments,  the  company  reserved  the  unqualified  right  to  dis 
continue  the  reports  and  remove  the  instruments  without  notice  when 
they  were  used  in  any  way  which  it  considered  detrimental  to  its  inter- 
ests. The  injunction  prohibited  the  exercise  of  the  right  thus  reserved^ 
and  was  for  that  reason  properly  vacated. 

The  order  should  be  affirmed,  with  costs  and  disbursements. 

Pratt,  J.  Defendants  are  a  public  corporation  under  obligation  tr 
render  their  services  impartially  and  without  discrimination  to  all  per- 
sons who  comply  with  their  reasonable  rules.  Yet  the  contract  entered 
into  by  the  parties  is  not  to  be  disregarded,  and  such  reasonable  stipu- 
lations  as  it  contains  will  be  respected  and  enforced  b}'  the  court.  The 
contract  provides  as  follows:  "These  reports  are  furnished  to  sub 
scribers  for  their  private  use  in  their  own  business,  exclusively.  It  is 
stipulated  that  such  will  not  sell  or  give  up  the  copies  of  the  reports  in 
whole  or  in  part,  nor  permit  any  outside  party  to  copy  them  for  use  or 
publication.  Under  this  rule  subscription  by  one  party  foi  Ihe  benefit 
of  himself  and  others  at  their  joint  expense  will  not  be  received."  The 
stipulation  is  reasonable  and  not  in  conflict  with  the  duty  owed  by 

»  Compare:  State  v.  Telephone  Co., 23  Fed.  539  ;  Hockett  r.  Staf  lOL  Ind.  250; 
Telephone  Co.  ».  Talley,  118  Ind.  194;  State  v.  Telephone  Co.,  17  Neb.  126;  State  v. 
Telephone  Co.,  36  Oh.  St.  296 ;  Telephone  Co.  v.  Com.,  3  AtL  825 ;  Telephone  Ca 
*.  Telephone  Co.,  61  Vt.  241.  —Ed. 


INTER-OCEAN  PUBLISHING   CO.   V.    ASSOCIATED   PKESS.  41 

defendants  to  the  public.  The  proof  shows  that  plaintiff  habitually 
caused  the  quotations,  when  received  upon  defendant's  instrument,  to 
be  transmitted  by  private  wire  to  Lawrence  Gross  &  Co.,  at  574  Fifth 
Avenue. 

Plaintiff  seeks  to  justify  this  breach  of  the  conditions  upon  which  he 
received  the  instrument  by  alleging  that  he  is  interested  in  business 
with  that  firm.  We  think  this  affords  no  justification.  If  plaintiff,  by 
entering  into  business  relations  with  another  firm,  could  gain  a  right  to 
repeat  the  quotations  he  might,  if  diligent,  absorb  a  great  share  of  de- 
fendant's business.  Plaintiff's  attempted  justification  brings  out  clearly 
the  reasonableness  of  the  clause  in  the  contract  to  which  we  have 
referred.  The  violation  by  plaintiff  of  the  stipulation  upon  which  he 
received  the  instrument  amply  sustains  the  order  vacating  the  injunction. 

Order  affirmed,  with  costs} 

Present  —  Pratt  and  Dtkman,  JJ.  ;  Barnard,  P.  J.,  not  sitting. 

Order  vacating  injunction  affirmed,  with  costs. 


THE  INTER-OCEAN  PUBLISHING  CO.  v.  THE  ASSOCIATED 

PRESS. 

Supreme  Court  of  Illinois,  1900. 

[184  III.  438.] 

Mr.  Justice  Phillips'*  delivered  the  opinion  of  the  court: 
The  Inter-Ocean  Publishing  Company,  a  corporation  organized  un- 
der the  laws  of  the  State  of  Illinois,  is  engaged  in  publishing  two 
newspapers  in  the  city  of  Chicago,  known  as  "  The  Daily  Inter-Ocean  " 
and  "  The  Weekly  Inter-Ocean,"  which  have  a  wide  circulation  in  the 
States  and  Territories  of  the  United  States.  The  Associated  Press  is 
a  corporation  organized  under  the  laws  of  the  State  of  Illinois  in  1892. 
The  object  of  its  creation  was,  "  To  buy,  gather,  and  accumulate  infor- 
mation and  news ;  to  vend,  supply,  distribute,  and  publish  the  same ; 
to  purchase,  erect,  lease,  operate,  and  sell  telegraph  and  telephone  lines 
and  other  means  of  transmitting  news ;  to  publish  periodicals ;  to 
make  and  deal  in  periodicals  and  other  goods,  wares,  and  merchan- 
dise." It  has  about  eighteen  by-laws  with  about  seventy-five  subdi- 
visions thereof.  The  stockholders  of  the  Associated  Press  are  the  pro- 
prietors of  newspapers,  and  the  only  business  of  the  corporation  is 
that  enunciated  in  its  charter,  and  is  mainly  buying,  gathering,  and 
accumulating  news  and  furnishing  the  same  to  persons  and  corpora- 
tions who  have  entered  into  contract  therefor.     It  may  furnish  news 

1  Compare:  Grain  and  Stock  Exchange  v.  Board  of  Trade,  127  111.  153;  Telegraph 
Co.  V.  Hyer,  22  Fla.  637 ;  Telegraph  Co.  v.  Wilson,  108  Ind.  308 ;  Brown  i;.  Telegraph, 
6  Utah,  236. 

2  The  case  is  abridged.  —  Ed. 


42  INTER-OCEAN   PUBLISHING  CO.   V.   ASSOCIATED  PKESS. 

to  persons  and  corporations  other  than  those  who  are  its  stockholders, 
and  the  term  "  members,"  used  in  its  by-laws,  applies  to  proprietors 
of  newspapers,  other  than  its  stockholders,  who  have  entered  into  con- 
tracts with  it  for  procuring  news.  It  does  not  appear  that  it  has  availed 
itself  of  any  of  the  powers  conferred  by  its  charter  other  than  that  of 
gathering  news  and  distributing  the  same  to  its  members.  Under  the 
bj-laws  of  appellee  the  Inter-Ocean  Publishing  Company  became  a 
stockholder.  Among  the  by-laws  having  reference  to  stockholders  are 
the  following: 

"Article  11.  —  Sec.  8.  Sale  or  purchase  of  specials.  —  No  member 
shall  furnish,  or  permit  any  one  to  furnish,  its  special  or  other  news 
to,  or  shall  receive  news  from,  an}-  person,  firm,  or  corporation  which 
shall  have  been  declared  by  the  board  of  directors  or  the  stockholders 
to  be  antagonistic  to  the  association ;  and  no  member  shall  furnish  news 
to  any  other  person,  firm,  or  corporation  engaged  in  the  business  of  col- 
lecting or  transmitting  news,  except  with  the  written  consent  of  the 
board  of  directors."  .  .  . 

The  bill  set  up  the  facts  hereinbefore  stated,  and  set  out  the  b3'-law8 
of  the  appellee  in  full,  and  alleged  that  the  appellee  had  been  able  to 
control  the  business  of  buying  and  accumulating  news  in  Chicago  and 
selling  the  same,  and  has  thus  created  in  itself  an  exclusive  monop- 
oly in  that  business,  and  to  presei-ve  such  monopoly  had  declared  the 
Sun  Printing  and  Publishing  Association  a  rival  or  competitor  in  busi- 
ness and  antagonistic  to  it,  and  sought  to  prohibit  its  members  from 
buying  news  therefrom  under  pain  of  suspension  or  expulsion  ;  alleged 
that  appellee  had  at  various  times,  b\'  threats  of  suspension  and  ex- 
pulsion, compelled  divers  of  its  members  to  cease  buying  the  special 
news  of  the  Sun  Printing  and  Publishing  Association  under  its  con- 
tracts with  its  members.  The  bill  set  out  the  contracts  and  names  of 
such  members,  and  alleged  that  the  notice  served  on  appellant  for  a 
bearing  on  the  comi>lainants  against  it  is  similar  to  the  action  of  ap- 
pellee against  other  members  who  were  forced  to  cease  buying  special 
news  from  the  Sun  Printing  and  Publishing  Association  ;  that  appel- 
lant is  in  dut}'  bound,  both  to  its  patrons  and  to  the  public,  to  publish 
all  the  news  it  can  gather,  and  if  not  able  to  obtain  such  news  from 
one  source,  it  must,  in  justice  to  its  patrons  and  the  public,  resort  to 
other  sources ;  that  the  news  which  it  obtained  from  appellee  it  was 
unable  to  obtain  from  an}-  other  source,  and  appellee  would  not  fur- 
nish the  same  to  appellant  unless  it  executed  the  contract  hereinbefore 
mentioned,  because  of  which  appellant  was  forced  to  and  did  execute 
such  contract ;  that  appellee  does  not  furnish  all  the  news  obtainable 
and  desired  by  appellant  under  that  contract,  and  to  obtain  such  other 
news  appellant  was  forced  to  resort  to  the  Sun  Printing  and  Publishing 
Association  of  New  York  ;  that  the  right  to  receive  the  news  gathered 
by  appellee  and  publish  the  same  in  its  newspaper  is  a  valuable  prop- 
erty and  property  right,  and  appellant  is  forced  to  obtain  the  news  not 
'obtainable  from  appellee,  and  which  is  absolutely  needed  in  publishing 


I 


INTER-OCEAN   PUBLISHING    CO.   V.    ASSOCIATED    PRESS.  43 

its  newspapers,  from  the  Sun  Printing  and  Publishing  Association  ;  that 
the  appellee  is  attempting  to  force  appellant  to  cease  taking  news  from 
the  latter  association,  but  to  do  so  would  work  irreparable  damage  and 
injury  to  appellant,  and  would  prevent  it  from  furnishing  needed,  im- 
portant, and  necessar}'  news  to  the  public,  and  would  tend  to  create  in 
favor  of  appellee  a  monopoly. 

The  organization  of  such  a  method  of  gathering  information  and 
news  from  so  wide  an  extent  of  territory  as  is  done  b}-  the  appellee 
corporation,  and  the  dissemination  of  that  news,  requires  the  expendi- 
ture of  vast  sums  of  mone}*.  It  reaches  out  to  the  various  parts  of 
the  United  States,  where  its  agents  gather  news  which  is  wired  to  it, 
and  through  it  such  news  is  received  by  the  various  important  news- 
papers of  the  countr}'.  Scarcely  any  newspaper  could  organize  and 
conduct  the  means  of  gathering  the  information  that  is  centred  in  an 
association  of  the  character  of  the  appellee  because  of  the  enormous 
expense,  and  no  paper  could  be  regarded  as  a  newspaper  of  the  day 
unless  it  had  access  to  and  published  the  reports  from  such  an  associa- 
tion as  appellee.  For  news  gathered  from  all  parts  of  the  country  the 
various  newspapers  are  almost  solely  dependent  on  such  an  associa- 
tion, and  if  they  are  prohibited  from  publishing  it  or  its  use  is  refused 
to  them,  their  character  as  newspapers  is  destroyed  and  they  would  soon 
become  practically'  worthless  publications.  The  Associated  Press,  from 
the  time  of  its  organization  and  establishment  in  business,  sold  its  news 
reports  to  various  newspapers  who  became  members,  and  the  publica- 
tion of  that  news  became  of  vast  importance  to  the  public,  so  that  pub- 
lic interest  is  attached  to  the  dissemination  of  that  news.  The  manner 
in  which  that  corporation  has  used  its  franchise  has  charged  its  business 
with  a  public  interest.  It  has  devoted  its  property  to  a  public  use,  and 
has,  in  effect,  granted  to  the  public  such  an  interest  in  its  use  that  it 
must  submit  to  be  controlled  by  the  public  for  the  common  good,  to 
the  extent  of  the  interest  it  has  thus  created  in  the  public  in  its  pri- 
vate property.  The  sole  purpose  for  which  news  was  gathered  was 
that  the  same  should  be  sold,  and  all  newspaper  publishers  desiring  to 
purchase  such  news  for  publication  are  entitled  to  purchase  the  same 
without  discrimination  against  them. 

We  hold  that  the  Circuit  Court  of  Cook  County  erred  in  entering  a 
decree  dismissing  the  bill  for  want  of  equit}',  and  the  Appellate  Court 
for  the  First  District  erred  in  affirming  the  same.  The  judgment  of  the 
Appellate  Court  for  the  First  District  and  the  decree  of  the  Circuit 
Court  of  Cook  County  are  each  reversed,  and  the  cause  is  remanded  to 
the  Circuit  Court  of  Cook  Count}',  with  directions  to  enter  a  decree  as 
praj'ed  for  in  the  bill.  Reversed  and  remanded?- 

1  Cmnpare  :  State  v.  Associated  Press,  159  Mo.  410.  —  Ed. 


44  MUNN  V.   ILLINOIS. 


MUNN  V.  ILLINOIS. 
Supreme  Coukt  of  the  United  States,  1876. 

[94  U.S.  n3A] 

From  an  agreed  statement  of  facts,  made  a  part  of  the  record,  it 
appears  that  Munn  &  Scott  leased  of  the  owner,  in  1862,  the  ground 
occupied  by  the  "North-western  Elevator,"  and  erected  thereon  the 
grain  warehouse  or  elevator  in  that  year,  with  their  own  capital  and 
means ;  that  they  ever  since  carried  on,  in  said  elevator,  the  business 
of  storing  and  handling  grain  for  hire,  for  which  the}^  charged  and 
received,  as  a  compensation,  the  rates  of  storage  which  had  been, 
from  3'ear  to  year,  agreed  upon  and  established  by  the  different  eleva- 
tors and  warehouses  in  the  city  of  Chicago,  and  published  in  one  or 
more  newspapers  printed  in  said  city,  in  the  month  of  Januarj^  in  each 
year,  as  the  established  rates  for  the  year  then  next  ensuing  such  pub- 
lication. On  the  twenty-eighth  day  of  June,  1872,  Munn  &  Scott 
were  the  managers  and  proprietors  of  the  grain  warehouse  known  as 
"The  North-western  Elevator,"  in  Chicago,  111.,  wherein  grain  of  dif- 
ferent owners  was  stored  in  bulk  and  mixed  together ;  and  they  then 
and  there  carried  on  the  business  of  receiving,  storing,  and  delivering 
grain  for  hire,  without  having  taken  a  license  from  the  Circuit  Court  of 
Cook  County,  permitting  them,  as  managers,  to  transact  business  as 
public  warehousemen,  and  without  having  filed  with  the  clerk  of  the 
Circuit  Court  a  bond  to  the  people  of  the  State  of  Illinois,  as  required 
by  sects.  3  and  4  of  the  act  of  April  25,  1871.  The  city  of  Chicago 
then,  and  for  more  than  two  years  before,  had  more  than  one  hundred 
thousand  inhabitants.  Munn  &  Scott  had  stored  and  mixed  grain  of 
different  owners  together,  only  by  and  with  the  express  consent  and 
permission  of  such  owners,  or  of  the  consignee  of  such  grain,  they 
having  agreed  that  the  compensation  should  be  the  published  rates  of 
storage. 

Munn  &  Scott  had  complied  in  all  respects  with  said  act,  except  in 
two  particulars :  Jirst,  they  had  not  taken  out  a  license,  nor  given  a 
bond,  as  required  by  sects.  3  and  4  ;  and,  second,  they  had  charged  for 
storage  and  handling  grain  the  rates  established  and  published  in  Jan- 
uary, 1872,  which  were  higher  than  those  fixed  by  sect.  15. 

The  defendants  were  found  guilty,  and  fined  $100. 

The  judgment  of  the  Criminal  Court  of  Cook  County  having  been 
aflSrmed  by  the  Supreme  Court  of  the  State,  Munn  &  Scott  sued  out 
this  writ,  and  assign  for  error:  — 

1.  Sects.  3,  4,  5,  and  15  of  the  statute  are  unconstitutional  and  void. 

^  This  case  ii  somewhat  abridged.  —  £d. 


MFNN   V.   ILLINOIS.  i5 

2.  Said  sections  are  repugnant  to  the  third  clause  of  sect.  8  of  art. 
1,  and  the  sixth  clause  of  sect.  9,  art.  1,  of  the  Constitution  of  the 
United  States,  and  to  the  Fifth  and  Fourteenth  Amendments. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

The  question  to  be  determined  in  this  case  is  whether  the  general 
assembly  of  Illinois  can,  under  the  limitations  upon  the  legislative 
power  of  the  States  imposed  by  the  Constitution  of  the  United  States, 
fix  by  law  the  maximum  of  charges  for  the  storage  of  grain  in  ware- 
houses at  Chicago  and  other  places  in  the  State  having  not  less  than 
one  hundred  thousand  inhabitants,  "in  which  grain  is  stored  in  bulk, 
and  in  which  the  grain  of  different  owners  is  mixed  together,  or  in 
which  grain  is  stored  in  such  a  manner  that  the  identity  of  different 
lots  or  parcels  cannot  be  accurately  preserved." 

It  is  claimed  that  such  a  law  is  repugnant  — 

1.  To  that  part  of  sect.  8,  art.  1,  of  the  Constitution  of  the  United 
States  which  confers  upon  Congress  the  power  "to  regulate  commerce 
with  foreign  nations  and  among  the  several  States ;  " 

2.  To  that  part  of  sect.  9  of  the  same  article  which  provides  that 
"  no  preference  shall  be  given  by  any  regulation  of  commerce  or  rev- 
enue to  the  ports  of  one  State  over  those  of  another  ; "  and 

3.  To  that  part  of  amendment  14  which  ordains  that  no  State  shall 
"  deprive  any  person  of  life,  liberty,  or  property,  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws." 

We  will  consider  the  last  of  these  objections  first. 

Every  statute  is  presumed  to  be  constitutional.  The  courts  ought 
not  to  declare  one  to  be  unconsfitutional,  unless  it  is  clearly  so.  If 
there  is  doubt,  the  expressed  will  of  the  legislature  should  be  sustained. 

The  Constitution  contains  no  definition  of  the  word  "  deprive, "  as 
used  in  the  Fourteenth  Amendment.  To  determine  its  signification, 
therefore,  it  is  necessary  to  ascertain  the  effect  which  usage  has  given 
it,  when  employed  in  the  same  or  a  like  connection. 

While  this  provision  of  the  amendment  is  new  in  the  Constitution  of 
the  United  States,  as  a  limitation  upon  the  powers  of  the  States,  it  is 
old  as  a  principle  of  civilized  government.  It  is  found  in  Magna 
Charta,  and,  in  substance  if  not  in  form,  in  nearly  or  quite  all  the  con- 
stitutions that  have  been  from  time  to  time  adopted  by  the  several 
States  of  the  Union.  By  the  Fifth  Amendment,  it  was  introduced  into 
the  Constitution  of  the  United  States  as  a  limitation  upon  the  powers 
of  the  national  government,  and  by  the  Fourteenth,  as  a  guaranty 
against  any  encroachment  upon  an  acknowledged  right  of  citizenship 
by  the  legislatures  of  the  States. 

When  the  people  of  the  United  Colonies  separated  from  Great 
Britain,  they  changed  the  form,  but  not  the  substance,  of  their  govern- 
ment. The}'  retained  for  the  purposes  of  Government  all  the  powers  of 
the  British  Parliament,  and  through  their  State  constitutions,  or  other 
forms  of  social  compact,  undertook  to  give  practical  effect  to  such  as 


46  MUNN   V.    ILLINOIS. 

they  deemed  necessar}-  for  the  common  good  and  the  securit}-  of  life  and 
propert}-.  All  the  powers  which  the}'  retained  they  committed  to  their 
respective  States,  unless  in  express  terras  or  by  implication  reserved  to 
tliemselves.  Subsequent!}',  wlien  it  was  found  necessary  to  establish  a 
national  government  for  national  purposes,  a  part  of  the  powers  of  the 
States  and  of  the  people  of  the  Stales  was  granted  to  the  United  States 
and  the  people  of  the  United  States.  This  grant  operated  as  a  further 
limitation  upon  the  powers  of  the  States,  so  that  now  the  governments 
of  the  States  possess  all  the  powers  of  the  Parliament  of  England,  ex- 
cept such  as  h^ave  been  delegated  to  the  United  States  or  reserved  bj- 
the  people.  Tlie  reservations  b}'  the  people  are  shown  in  the  prohibi- 
tions of  the  constitutions. 

When  one  becomes  a  member  of  societ}',  he  necessarily  parts  with 
some  rights  or  privileges  which,  as  an  individual  not  affected  by  his 
relations  to  others,  he  might  retain.  "A  bodj-  politic,"  as  aptl}'  de- 
fined in  the  preamble  of  the  Constitution  of  Massachusetts,  "  is  a 
social  compact  by  which  the  whole  people  covenants  with  each  citizen, 
and  each  citizen  with  the  whole  people,  that  all  shall  be  governed  by 
certain  laws  for  the  common  good."  This  does  not  confer  power  upon 
the  whole  people  to  control  rights  which  are  purel}'^  and  exclusively 
private,  Thorpe  v.  R.  &  B.  Railroad  Co.,  27  Vt.  143  ;  but  it  does  author- 
ize the  establishment  of  laws  requiring  each  citizen  to  so  conduct  him- 
self and  so  use  his  own  property,  as  not  unnecessarilj-  to  injure  another. 
This  is  the  very  essence  of  government,  and  has  found  expression  in 
the  maxim  sic  utere  tuo  ut  alienum  non  Icedas.  From  this  source 
come  the  police  powers,  which,  as  was  said  In*  Mr.  Chief  Justice  Taney 
in  the  License  Cases,  5  IIow.  583,  "are  nothing  more  or  less  than  the 
powers  of  government  inherent  in  every  so vereignt}',  .  .  .  that  is  to  saj', 
.  .  .  the  power  to  govern  men  and  things."  Under  these  powers  the 
government  regulates  the  conduct  of  its  citizens  one  towards  another, 
and  tiie  manner  in  which  each  shall  use  his  own  propert}-,  when  such 
regulation  becomes  necessary  for  tlie  public  good.  In  their  exercise  it 
has  been  customary  in  England  from  time  immemorial,  and  in  this  coun- 
try from  its  first  colonization,  to  regulate  ferries,  common  carriers, 
hackmen,  bakers,  millers,  wharfingers,  innkeepers,  &c.,  and  in  so  doing 
to  fix  a  maximum  of  charge  to  be  made  for  services  rendered,  accom- 
modations furnished,  and  articles  sold.  To  this  dav,  statutes  are  to  be 
found  in  many  of  the  States  upon  some  or  all  these  subjects ;  and  we 
think  it  has  never  yet  been  successfully  contended  that  such  legisla- 
tion came  within  any  of  the  constitutional  prohibitions  against  inter- 
ference with  private  property.  With  the  Fifth  Amendment  in  force, 
Congress,  in  1820,  conferred  power  upon  the  city  of  Washington  "  to 
regulate  .  .  .  the  rates  of  wharfage  at  private  wharves,  .  .  .  the  sweep- 
ing of  chimneys,  and  to  fix  the  rates  of  fees  therefor,  .  .  .  and  the 
weight  and  quality  of  bread,"  3  Stat.  587,  sect.  7  ;  and,  in  1848,  "to 
make  all  necessary  regulations  respecting  hackney  carriages  and  the 
rates  of  fare  of  the  same,  and  the  rates  of  hauling  by  cartmen,  wagon- 


MUNN   V.   ILLINOIS.  47 

ers,  carmen,  and  draj'men,  and  the  rates  of  commission  of  auctioneers," 
9  Stat.  224,  sect.  2.  ' 

From  this  it  is  apparent  that,  down  to  the  time  of  the  adoption  of 
the  Fourteenth  Amendment,  it  was  not  supposed  that  statutes  regulat- 
ing the  use,  or  even  the  price  of  the  use,  of  private  property  neces- 
sarily deprived  an  owner  of  his  property  without  due  process  of  law. 
Under  some  circumstances  the}-  ma}-,  but  not  under  all.  The  amend- 
ment does  not  change  the  law  in  this  particular :  it  simply  prevents  the 
States  from  doing  that  which  will  operate  as  such  a  deprivation. 

This  brings  us  to  inquire  as  to  the  principles  upon  which  this  power 
of  regulation  rests,  in  order  that  we  may  determine  what  is  within  and 
what  without  its  operative  effect.  Looking,  then,  to  the  common  law, 
from  whence  came  the  right  which  the  Constitution  protects,  we  find 
that  when  private  property  is  "  affected  with  a  public  interest,  it  ceases 
to  be  juris  privati  onl}'."  This  was  said  b}'  Lord  Chief  Justice  Hale 
more  than  two  hundred  3'ears  ago,  in  his  treatise  De  Portihus  Maris, 
1  Harg.  Law  Tracts,  78,  and  has  been  accepted  without  objection  as 
an  essential  element  in  the  law  of  property  ever  since.  Propert}'  does 
become  clothed  with  a  public  interest  when  used  in  a  manner  to  make 
it  of  public  consequence,  and  affect  the  community  at  large.  When, 
therefore,  one  devotes  his  property  to  a  use  in  which  the  public  has  an 
interest,  he,  in  effect,  grants  to  the  public  an  interest  in  that  use,  and 
must  submit  to  be  controlled  b}-  the  public  for  the  common  good,  to 
the  extent  of  the  interest  he  has  thus  created.  He  may  withdraw  his 
grant  b\'  discontinuing  the  use  ;  but,  so  long  as  he  maintains  the  use, 
he  must  submit  to  the  control. 

Enough  has  alread}'  been  said  to  show  that,  when  private  property' 
is  devoted  to  a  public  use,  it  is  subject  to  public  regulation.  It 
remains  onl}'  to  ascertain  whether  the  warehouses  of  these  plaintiffs 
in  error,  and  the  business  which  is  carried  on  there,  come  within  the 
operation  of  this  principle. 

For  this  purpose  we  accept  as  true  the  statements  of  fact  contained 
in  the  elaborate  brief  of  one  of  the  counsel  of  the  plaintiffs  in  error. 
From  these  it  appears  that  "the  great  producing  region  of  the  West 
and  North-west  sends  its  grain  by  water  and  rail  to  Chicago,  where  the 
greater  part  of  it  is  shipped  by  vessel  for  transportation  to  the  sea- 
board by  the  Great  Lakes,  and  some  of  it  is  forwarded  by  railway  to 
the  Eastern  ports.  .  .  .  Vessels,  to  some  extent,  are  loaded  in  the 
Chicago  harbor,  and  sailed  through  the  St.  Lawrence  directly  to 
Europe.  .  . ".  The  quantit}'  [of  grain]  received  in  Chicago  has  made  it 
the  greatest  grain  market  in  the  world.  This  business  has  created  a 
demand  for  means  by  which  the  immense  quantit}'  of  grain  can  be 
handled  or  stored,  and  these  have  been  found  in  grain  warehouses, 
which  are  common!}'  called  elevators,  because  the  grain  is  devated 
from  the  boat  or  car,  b}'  machinery  operated  by  steam,  into  the  bins 
prepared  for  its  reception,  and  elevated  from  the  bins,  by  a  like  process, 
into  the  vessel  or  car  which  is  to  carry  it  on.  ...  In  this  way  the 


48  MUNN   V.   ILLINOIS. 

largest  traffic  between  the  citizens  of  the  country  north  and  west  of 
Chicago  and  the  citizens  of  the  country  lying  on  the  Atlantic  coast 
north  of  Washington  is  in  grain  which  passes  through  the  elevators  of 
Chicago.  In  this  way  the  trade  in  grain  is  carried  on  by  the  inhabi- 
tants of  seven  or  eight  of  the  great  States  of  the  West  with  four  or 
five  of  the  States  lying  on  the  sea-shore,  and  forms  the  largest  part  of 
inter-state  commerce  in  these  States.  The  grain  warehouses  or  ele- 
vators in  Chicago  are  immense  structures,  holding  from  300,000  to 
1,000,000  bushels  at  one  time,  according  to  size.  Thej-  are  divided 
into  bins  of  large  capacity  and  great  strength.  .  .  .  They  are  located 
with  the  river  harbor  on  one  side  and  the  railway  tracks  on  the  other ; 
and  the  grain  is  run  through  them  from  car  to  vessel,  or  boat  to  car,  as 
ma}'  be  demanded  in  the  course  of  business.  It  has  been  found  im- 
possible to  preserve  each  owner's  grain  separate,  and  this  has  given 
rise  to  a  system  of  inspection  and  grading,  by  which  the  grain  of  dif- 
ferent owners  is  mixed,  and  receipts  issued  for  the  number  of  bushels 
■which  are  negotiable,  and  redeemable  in  like  kind,  upon  demand.  This 
mode  of  conducting  the  business  was  inaugurated  more  than  twenty 
years  ago,  and  has  grown  to  immense  proportions.  The  railways  have 
found  it  impracticable  to  own  such  elevators,  and  public  policy  forbids 
the  transaction  of  such  business  by  the  carrier ;  the  ownership  has, 
therefore,  been  by  private  individuals,  who  have  embarked  their  capi- 
tal and  devoted  their  industry  to  such  business  as  a  private  pursuit." 

In  this  connection  it  must  also  be  borne  in  mind  that,  although  in 
1874  there  were  in  Chicago  fourteen  warehouses  adapted  to  this  par- 
ticular business,  and  owned  by  about  thirty  persons,  nine  business 
firms  controlled  them,  and  that  the  prices  charged  and  received  for 
storage  were  such  "  as  have  been  from  year  to  year  agreed  upon  and 
established  by  the  different  elevators  or  warehouses  in  the  city  of 
Chicago,  and  which  rates  have  been  annually  published  in  one  or  more 
newspapers  printed  in  said  city,  in  the  month  of  January  in  each  3ear, 
as  the  established  rates  for  the  year  then  next  ensuing  such  publication," 
Thus  it  is  apparent  that  all  the  elevating  facilities  through  which  these 
vast  productions  **of  seven  or  eight  great  States  of  the  West"  must 
pass  on  the  way  ' '  to  four  or  five  of  the  States  on  the  seashore  "  may 
be  a  "  virtual  "  monopoly. 

Under  such  circumstances  it  is  difficult  to  see  why,  if  the  common 
carrier,  or  the  miller,  or  the  ferryman,  or  the  innkeeper,  or  the  wharf- 
inger, or  the  baker,  or  the  cartman,  or  the  hackney-coachman,  pursues 
a  public  employment  and  exercises  "  a  sort  of  public  office,"  these 
plaintiffs  in  error  do  not.  They  stand,  to  use  again  the  language  of 
their  counsel,  in  the  very  "gateway  of  commerce,"  and  take  toll  from 
all  who  pass.  Their  business  most  certainl}'  "  tends  to  a  common 
charge.'  and  is  become  a  thing  of  public  interest  and  use."  Every  bushel 
of  grain  for  its  passage  "  pays  a  toll,  which  is  a  common  charge,"  and, 
therefore,  according  to  Lord  Hale,  every  such  warehouseman  "ought 
to  be  under  public  regulation,  viz.,  that  he  . .  .  take  but  reasonable  toll." 


MUNN   V.   ILLINOIS.  49 

Certainly,  if  any  business  can  be  clothed  "  •vrith  a  public  interest,  and 
cease  to  be  Jm-is  privati  only,"  this  has  been.  It  may  not  be  made 
so  by  the  operation  of  the  Constitution  of  Illinois  or  this  statute,  but 
it  is  by  the  facts. 

We  also  are  not  permitted  to  overlook  the  fact  that,  for  some  reason, 
the  people  of  Illinois,  when  they  revised  their  Constitution  in  1870, 
saw  fit  to  make  it  the  duty  of  the  general  assembly  to  pass  laws  "  for 
the  protection  of  producers,  shippers,  and  receivers  of  grain  and  prod- 
uce," art.  13,  sect.  7  ;  and  by  sect.  5  of  the  same  article,  to  require  all 
railroad  companies  receiving  and  transporting  grain  in  bulk  or  other- 
wise to  deliver  the  same  at  any  elevator  to  which  it  might  be  consigned, 
that  could  be  reached  by  any  track  that  was  or  could  be  used  b}'  such 
compan}-,  and  that  all  railroad  companies  should  permit  connections  to 
be  made  with  their  tracks,  so  that  any  public  warehouse,  &c.,  might  be 
reached  b}'  the  cars  on  their  railroads.  This  indicates  very  clearl}'' 
that  during  the  twenty  years  in  which  this  peculiar  business  had  been 
assuming  its  present  "immense  proportions,"  something  had  occurred 
which  led  the  whole  body  of  the  people  to  suppose  that  remedies  such 
as  are  usually  emploj'ed  to  prevent  abuses  by  virtual  monopolies  might 
not  be  inappropriate  here.  For  our  purposes  we  must  assume  that,  if 
a  state  of  facts  could  exist  that  would  justify  such  legislation,  it  actu- 
ally did  exist  when  the  statute  now  under  consideration  was  passed. 
For  us  the  question  is  one  of  power,  not  of  expedienc}'.  If  no  state 
of  circumstances  could  exist  to  justify  such  a  statute,  then  we  may 
declare  this  one  void,  because  in  excess  of  the  legislative  power  of  the 
State.  But  if  it  could,  we  must  presume  it  did.  Of  the  propriety  of 
legislative  interference  within  the  scope  of  legislative  power,  the  legis- 
lature is  the  exclusive  judge. 

Neither  is  it  a  matter  of  any  moment  that  no  precedent  can  be 
found  for  a  statute  precisely  like  this.  It  is  conceded  that  the  busi- 
ness is  one  of  recent  origin,  that  its  growth  has  been  rapid,  and  that  it 
is  already  of  great  importance.  And  it  must  also  be  conceded  that  it  is 
a  business  in  which  the  whole  public  has  a  direct  and  positive  interest. 
It  presents,  therefore,  a  case  for  the  application  of  a  long-known  and 
well-established  principle  in  social  science,  and  this  statute  simply  ex- 
tends the  law  so  as  to  meet  this  new  development  of  commercial  prog- 
ress. There  is  no  attempt  to  compel  these  owners  to  grant  the  public 
an  interest  in  their  property,  but  to  declare  their  obligations,  if  they 
use  it  in  this  particular  manner. 

It  matters  not  in  this  case  that  these  plaintiffs  in  error  had  built 
their  warehouses  and  established  their  business  before  the  regulations 
complained  of  wei-e  adopted.  What  they  did  was  from  the  beginning 
subject  to  the  power  of  the  body  politic  to  require  them  to  conform  to 
such  regulations  as  might  be  established  by  the  proper  authorities  for 
the  common  good.  They  entered  upon  their  business  and  provided 
themselves  with  the  means  to  carry  it  on  subject  to  this  condition.  If 
they  did  not  wish  to  submit  themselves  to  such  interference,  the}'  should 

4 


50  MUNN   V.   ILLINOIS. 

not  have  clothed  the  public  with  an  interest  in  their  concerns.  The 
same  principle  applies  to  them  that  does  to  the  proprietor  of  a  hackney- 
carriage,  and  as  to  him  it  has  never  been  supposed  that  he  was  exempt 
from  regulating  statutes  or  ordinances  because  he  had  purchased  his 
horses  and  carriage  and  established  his  business  before  the  statute  or 
the  ordinance  was  adopted. 

It  is  insisted,  however,  that  the  owner  of  property  is  entitled  to  a 
reasonable  compensation  for  its  use,  even  though  it  be  clothed  with 
a  public  interest,  and  that  what  is  reasonable  is  a  judicial  and  not  a 
legislative  question. 

As  has  already  been  shown,  the  practice  has  been  otherwise.  In 
countries  where  the  common  law  prevails,  it  has  been  customar}'  from 
time  immemorial  for  the  legislature  to  declare  what  shall  be  a  reason- 
able compensation  under  such  circumstances,  or,  perhaps  more  properly 
speaking,  to  fix  a  maximum  beyond  which  an}'  charge  made  would  be 
unreasonable.  Undoubtedl}',  in  mere  private  contracts,  relating  to 
matters  in  which  the  public  has  no  interest,  what  is  reasonable  must 
be  ascertained  judicially.  But  this  is  because  the  legislature  has  no 
control  over  such  a  contract.  So,  too,  in  matters  which  do  affect  the 
public  interest,  and  as  to  which  legislative  control  may  be  exercised, 
if  there  are  no  statutory  regulations  upon  the  subject,  the  courts  must 
determine  what  is  reasonable.  The  controlling  fact  is  the  power  to 
regulate  at  all.  If  that  exists,  the  right  to  establish  the  maximum  of 
charge,  as  one  of  the  means  of  regulation,  is  implied.  In  fact,  the 
common-law  rule,  which  requires  the  charge  to  be  reasonable,  is  itself 
a  regulation  as  to  price.  Without  it  the  owner  could  make  his  rates  at 
will,  and  compel  the  public  to  yield  to  his  terms,  or  forego  the  use. 

But  a  mere  common-law  regulation  of  trade  or  business  may  be 
changed  by  statute.  A  person  has  no  property,  no  vested  interest,  in 
any  rule  of  the  common  law.  That  is  only  one  of  the  forms  of  munic- 
ipal law,  and  is  no  more  sacred  than  an}-  other.  Rights  of  property 
which  have  been  created  by  the  common  law  cannot  be  taken  away 
without  due  process ;  but  the  law  itself,  as  a  rule  of  conduct,  may  be 
changed  at  the  will,  or  even  at  the  whim,  of  the  legislature,  unless 
prevented  b}'  constitutional  limitations.  Indeed,  the  great  office  or 
statutes  is  to  remed}'  defects  in  the  common  law  as  the}'  are  developed, 
and  to  adapt  it  to  the  changes  of  time  and  circumstances.  To  limit 
the  rate  of  charge  for  services  rendered  in  a  public  employment,  or  for 
the  use  of  the  property  in  which  the  public  has  an  interest,  is  only 
changing  a  regulation  which  existed  before.  It  establishes  no  new 
principle  in  the  law,  but  only  gives  a  new  effect  to  an  old  one. 

We  know  that  this  is  a  power  which  may  be  abused  ;  but  that  is  no 
argument  against  its  existence.  For  protection  against  abuses  by- 
legislatures  the  people  must  resort  to  the  polls,  not  to  the  courts. 

After  what  has  already  been  said,  it  is  unnecessary  to  refer  at  length 
to  the  effect  of  the  other  provision  of  the  Fourteenth  Amendment  which 
is  relied  upon,  viz.,  that  no  State  shall  '■*■  deny  to  any  person  within  its 


PEOPLE   V.   BUDD.  51 

jurisdiction  the  equal  protection  of  the  laws."  Certainlj',  it  cannot  be 
claimed  that  this  prevents  the  State  from  regulating  the  fares  of  liack- 
ujen  or  the  charges  of  draymen  in  Chicago,  unless  it  does  the  same 
thing  in  every  other  place  within  its  jurisdiction.  But,  as  has  been 
seen,  the  power  to  regulate  the  business  of  warehouses  depends  upon 
the  same  principle  as  the  power  to  regulate  hackmen  and  draymen,  and 
what  cannot  be  done  in  tlie  one  case  in  this  particular  cannot  be  done 
in  the  other.  Judgment  affirmed.^ 

Mr.  Justice  Field  and  Mr.  Justice  Strong  dissented. 


PEOPLE  V.   BUDD. 

Court  of  Appeals,  New  York,  1889. 

[117  N.  Y.  1.2] 

Appeal  from  judgment  of  the  general  term  of  the  Superior  Court  of 
the  citj'  of  Buffalo  entered  upon  an  order  made  December  31,  1888, 
which  affirmed  a  judgment  of  a  criminal  term  of  said  court  entered 
upon  a  verdict,  convicting  defendant  of  a  misdemeanor  in  violating  the 
provisions  of  the  act  (chap.  581,  Laws  of  1888)  known  as  the  Elevator 
Act. 

The  material  facts  are  stated  in  the  opinion. 

Decided  October  15,  1889. 

Andrews,  J.  The  main  question  upon  this  record  is  whether  the 
legislation  fixing  the  maximum  charge  for  elevating  grain,  contained 
in  the  act  (chapter  581,  Laws  1888),  is  valid  and  constitutional. 
The  act,  in  its  first  section,  fixes  the  maximum  charge  for  receiving, 
weighing,  and  discharging  grain  by  means  of  floating  and  stationary 
elevators  and  warehouses  in  this  State  at  five-eighths  of  one  cent  a 
bushel,  and  for  trimming  and  shovelling  to  the  leg  of  the  elevator, 
in  the  process  of  handling  grain  by  means  of  elevators,  "  lake  ves- 
sels, or  propellers,  the  ocean  vessels  or  steamships,  and  canal  boats," 
shall,  the  section  declares,  only  be  required  to  pay  the  actual  cost. 
The  second  section  makes  a  violation  of  the  act  a  misdemeanor, 
punishable  by  fine  of  not  less  than  $250.  The  third  section  gives  a 
civil  remed}'  to  a  party  injured  bj'  a  violation  of  the  act.  The  fourth 
section  excludes  from  the  operation  of  the  act  an}-  village,  town, 
or   city  having  less   than    130,000   population.      The  defendant,   the 

1  Compare :  Davis  v.  State,  68  Ala.  58;  Breechbill  v.  Randall,  102  Ind.  528  ;  Naah 
r.  Paige,  80  Ky.  539  ;  Dock  Co.  v.  Garrity,  115  111.  155  ;  State  v.  Edwards,  86  Me.  105  ; 
1{.  R.  V.  Stock  Yard  Co.,  45  N.  J.  Eq.  50;  Ryan  v.  Terminal  Co.,  102  Tenn.  119;  Bar 
rington  v.  Dock  Co.,  15  Wash.  175.  —  Ed. 

2  This  case  is  abridged.  —  Ed. 


\^ 


62  PEOPLE  V.   BUDD. 

manager  of  a  stationary  elevator  in  the  city  of  Buffalo,  on  the  19th 
day  of  September,  1888,  exacted  from  the  Lehigh  Valley  Transpor- 
tation Company,  for  elevating,  raising,  and  discharging  a  cargo  of 
corn  from  a  lake  propeller  at  his  elevator,  the  sum  of  one  cent  a 
bushel,  and  for  shoveling  to  the  leg  of  the  elevator  the  carrier  was 
charged  and  compelled  to  pay  $4  for  each  thousand  bushels.  The 
shoveling  of  grain  to  the  leg  of  an  elevator  at  the  port  of  Buffalo  is 
now  performed,  pursuant  to  an  arrangement  made  ^nce  the  passage 
of  the  act  of  1888,  by  a  body  of  men  known  as  the  Shovelers'  Union, 
who  pay  the  elevator  $1.75  a  thousand  bushels  for  the  use  of  the 
steam-shovel,  a  part  of  the  machinery  connected  with  the  elevator, 
operated  by  steam,  and  who  for  their  services,  and  the  expense  of  the 
steam-shovel,  charge  the  carrier  for  each  thousand  bushels  of  grain 
shoveled  the  sum  of  $4.  The  defendant  was  indicted  for  a  violation 
of  the  act  of  1888.  The  indictment  contains  a  single  count,  charging 
a  violation  of  the  first  section  in  two  particulars,  viz.,  in  exacting 
more  than  the  statute  rate  for  elevating  the  cargo,  and  exacting  more 
than  the  actual  cost  for  shoveling  the  grain  to  the  leg  of  the 
elevator.  ... 

The  question  is  whether  the  power  of  the  legislature  to  regulate 
charges  for  the  use  of  property,  and  the  rendition  of  services  con- 
nected with  it,  depend  in  every  case  upon  the  circumstance  that  the 
owner  of  the  property  has  a  legal  monopoly  or  privilege  to  use  the 
property  for  the  particular  purpose,  or  has  some  special  protection 
from  the  government,  or  some  peculiar  benefit  in  the  prosecution  of 
his  business.  Lord  Hale,  in  the  treatises  De  Portibus  Maris  and 
De  Jure  Maris,  so  largely  quoted  from  in  the  opinions  in  the  Munn 
Case,  used  the  language  that  when  private  property  is  '*  affected 
with  a  public  interest  it  ceases  to  be  juris  privati  only,"  in  assign- 
ing the  reason  why  ferries  and  public  wharves  should  be  under  public 
regulation,  and  only  reasonable  tolls  charged.  The  right  to  establish 
a  ferry  was  a  franchise,  and  no  man  could  set  up  a  ferry,  although 
he  owned  the  soil  and  landing  places  on  both  sides  of  the  stream, 
without  a  charter  from  the  king,  or  a  prescription  time  out  of  mind. 
The  franchise  to  establish  ferries  was  a  royal  prerogative,  and  the 
grant  of  the  king  was  necessary  to  authorize  a  subject  to  establish  a 
public  ferry,  even  on  his  own  premises.  When  We  recur  to  the 
origin  and  purpose  of  this  prerogative,  it  will  be  seen  that  it  was 
vested  in  the  king  as  a  means  by  which  a  business  in  which  the  whole 
community  were  interested  could  be  regulated.  In  other  words,  it 
was  simply  one  mode  of  exercising  a  prerogative  of  government  — 
that  is  to  say,  through  the  sovereign  instead  of  through  Parliament 
—  in  a  matter  of  public  concern.  This  and  similar  prerogatives  were 
vested  in  the  king  for  public  purposes,  and  not  for  his  private  ad- 
vantage or  emolument.  Lord  Kenvon  in  Rorke  v.  Dayrell,  4  Term 
B.  410,  said:  "  The  prerogatives  [of  the  crown]  are  not  given  for  the 


PEOPLE   V.   BUDD.  53 

personal  advantage  of  the  king,  but  they  are  allowed  to  exist  because 
they  are  beneficial  to  the  subject;  "  and  it  is  said  in  Chitty  on  Prerog- 
atives (page  4) :  "  The  splendor,  rights,  and  power  of  the  crown 
were  attached  to  it  for  the  benefit  of  the  people,  and  not  for  the  pri- 
vate gratification  of  the  subject."  And  Lord  Hale,  in  one  of  the 
passages  referred  to,  in  stating  the  reason  why  a  man  may  not  set  up 
a  ferry  without  a  charter  from  the  king,  says:  "  Because  it  doth  in 
consequence  tend  to  a  common  charge,  and  is  become  a  thing  of 
public  interest  and  use,  and  every  man  for  his  passage  pays  a  toll 
which  is  a  common  charge,  and  every  ferry  ought  to  be  under  a 
public  regulation."  The  right  to  take  tolls  for  wharfage  in  a  public 
port  was  also  a  franchise,  and  tolls,  as  Lord  Hale  says,  could  not  be 
taken  without  lawful  title  by  charter  or  prescription.  De  Port.  Mar. 
77.  But  the  king,  if  he  maintained  a  public  wharf,  was  under  the 
same  obligation  as  a  subject  to  exact  only  reasonable  tolls,  nor  could 
the  king  authorize  unreasonable  tolls  to  be  taken  by  a  subject. 
The  language  of  Lord  Hale  is  explicit  upon  both  these  points:  "  If 
the  king  or  subject  have  a  public  wharf  into  which  all  persons  that 
come  to  that  port  must  come  to  unload  their  goods,  as  for  the  pur- 
pose, because  they  are  the  wharves  only  licensed  by  the  queen, 
according  to  the  statute  of  1  Eliz.  c.  11,  or  because  there  is  no  other 
wharf  in  that  port,  as  it  may  fall  out  when  a  port  is  newly  erected, 
in  that  case  there  cannot  be  taken  arbitrary  and  excessive  duties  for 
cranage,  wharfage,  passage,  etc.  Neither  can  thej'  be  enhanced  to 
an  immoderate  degree,  but  the  duties  must  be  reasonable  and  moder- 
ate, though  settled  by  the  king's  license  or  charter." 

The  contention  that  the  right  to  regulate  the  charges  of  ferrymen  or 
wharfingers  was  founded  on  the  fact  that  tolls  could  not  be  taken 
without  the  king's  license  does  not  seem  to  us  to  be  sound.  It 
rested  on  the  broader  basis  of  public  interest,  and  the  license  was  the 
method  by  which  persons  exercising  these  functions  were  subjected 
to  governmental  supervision.  The  king,  in  whom  the  franchise  of 
wharfage  was  vested  as  a  royal  prerogative,  was  himself,  as  has  been 
shown,  subject  to  the  same  rule  as  the  subject,  and  could  only  exact 
reasonable  wharfage,  nor  could  he  by  express  license  authorize  the 
taking  of  more.  The  language  of  Lord  Hale,  that  private  property 
may  be  affected  by  a  public  interest,  cannot  justly,  we  think,  be 
restricted  as  meaning  only  property  clothed  with  a  public  character 
by  special  grant  or  charter  of  the  sovereign.  The  control  which  by 
common  law  and  by  statute  is  exercised  over  common  carriers  is 
conclusive  upon  the  point  that  the  right  of  the  legislature  to  regu- 
late the  charges  for  services  in  connection  with  the  use  of  property 
does  not  in  every  case  depend  upon  the  question  of  legal  monopoly. 
From  the  earliest  period  of  the  common  law  it  has  been  held  that 
coDomon  carriers  were  bound  to  carry  for  a  reasonable  compensation. 
They  were  not  at  liberty  to  charge  whatever  sum  they  pleased,  and, 
even  where  the  price  of  carriage  was  fixed  by  the  contract  or  conven- 
tion  of  the  parties,  the  contract  was  not  enforceable  beyond  the  point 


54  PEOPLE   V.   BUDD. 

of  reasonable  compensation.  From  time  to  time  statutes  have  been 
enacted  in  England  and  in  this  countrj'  fixing  the  sum  which  should 
be  charged  by  carriers  for  the  transportation  of  passengers  and  prop- 
erty, and  the  validity  of  such  legislation  has  not  been  questioned. 
But  theT)usiness  of  common  carriers  until  recent  times  was  conducted 
almost  exclusively  by  individuals  for  private  emolument,  and  was  open 
to  every  one  who  chose  to  engage  in  it.  The  state  conferred  no  fran- 
chise, and  extended  to  common  carriers  no  benefit  or  protection, 
except  that  general  protection  which  the  law  affords  to  all  persons 
and  property  within  its  jurisdiction.  The  extraordinary  obligations 
imposed  upon  carriers,  and  the  subjection  of  the  business  to  public 
regulation,  were  based  on  the  character  of  the  business;  or,  in  the 
language  of  Sir  William  Jones,  upqn  the  consideration  "  that  the 
calling  is  a  public  employment."  Jones,  Bailm.  App.  It  is  only 
a  public  employment  in  the  sense  of  the  language  of  Lord  Hale, 
that  it  was  "  aflfected  with  a  public  interest,"  and  the  imposition  of 
the  character  of  a  public  business  upon  the  business  of  a  common 
carrier  was  made  because  public  policy  was  deemed  to  require  that  it 
should  be  under  public  regulation.  The  principle  of  the  common 
law,  that  common  carriers  must  serve  the  public  for  a  reasonable 
compensation,  became  a  part  of  the  law  of  this  state,  and  from  the 
adoption  of  the  constitution  has  been  part  of  our  municipal  law.  It 
is  competent  for  the  legislature  to  change  the  rule  of  reasonable  com- 
pensation, as  the  matter  was  left  by  the  common  law,  and  prescribe  a 
fixed  and  definite  compensation  for  the  services  of  common  carriers. 
This  principle  was  declared  in  the  Munn  Case,  which  was  cited  with 
approval  on  this  point  in  Sawyer  ?n  Davis,  136  Mass.  239.  It  accords 
with  the  language  of  Chief  Justice  Shaw  in  Com.  xt.  Alger,  7  Cush. 
53:  "  Wherever  there  is  a  general  right  on  the  part  of  the  public, 
and  a  general  duty  on  the  part  of  a  land-owner  or  anj^  other  person 
to  respect  such  right,  we  think  it  is  competent  for  the  legislature, 
by  a  specific  enactment,  to  prescribe  a  precise,  practical  rule  for 
declaring,  establishing,  and  securing  such  right,  and  enforcing 
respect  for  it."  The  practice  of  the  legislature  in  this  and  other 
states  to  pi'escribe  a  maximum  rate  for  the  transportation  of  persons 
or  property  on  railroads  is  justified  upon  this  principle.  Where  the 
right  of  the  legislature  to  regulate  the  fares  or  charges  on  railroads 
is  received  by  the  charter  of  incorporation,  or  the  charter  was  granted 
subject  to  the  general  right  of  alteration  or  repeal  by  the  legislature, 
the  power  of  the  legislature  in  such  cases  to  prescribe  the  rate  of 
compensation  is  a  part  of  the  contract,  and  the  exercise  of  the  power 
does  not  depend  upon  any  general  legislative  authority  to  regulate 
the  charges  of  common  carriers.  But  the  cases  are  uniform  that 
where  there  is  no  reservation  in  the  charter  the  legislature  may 
nevertheless  interfere,  and  prescribe  or  limit  the  charges  of  railroad 
corporations.  The  Granger  Cases,  94  U.  S.  113;  Dow  ?•.  Beidelman, 
12.5  U.  S.  080;  P:arl,  J.,  in  People  r.  Railroad  Co.,  70  N.  Y.  569; 
RuGER,  C.  J.,  in  Railroad  Co.  v.  Railroad  Co.,  Ill  N.  Y.  132. 


PEOPLE   V.  BUDD.  55 

The  power  of  regulation  in  these  cases  does  not  turn  upon  the  fact 
that  the  entities  affected  by  the  legislation  are  corporations  deriving 
their  existence  from  the  state,  but  upon  the  fact  that  the  corporations 
are  common  carriers,  and  therefore  subject  to  legislative  control. 
The  state,  in  constituting  a  corporation,  may  prescribe  or  limit  itf< 
powers,  and  reserve  such  control  as  it  sees  fit,  and  the  body  accepting 
the  charter  takes  it  subject  to  such  limitations  and  reservations,  and 
is  bound  by  them.  The  considerations  upon  which  a  corporation 
holds  its  franchise  are  the  duties  and  obligations  imposed  by  the  act 
of  incorporation.  But  when  a  corporation  is  created  it  has  the  same 
rights  and  the  same  duties,  within  the  scope  marked  out  for  its 
action,  that  a  natural  person  has.  Its  property  is  secured  to  it  by  the 
same  constitutional  guaranties,  and  in  the  management  of  its  prop- 
erty and  business  is  subject  to  regulation  by  the  legislature  to  the 
same  extent  only  as  natural  persons,  except  as  the  power  may  be 
extended  by  its  charter.  The  mere  fact  of  a  corporate  character 
does  not  extend  the  power  of  legislative  regulation.  For  illustration, 
it  could  not  justly  be  contended  that  the  act  of  1888  would  be  a  valid 
exercise  of  legislative  power  as  to  corporations  organized  for  the  pur- 
pose of  elevating  grain,  although  invalid  as  to  private  persons  con- 
ducting the  same  business.  The  conceded  power  of  legislation  over 
common  carriers  is  adverse  to  the  claim  that  the  police  power  does 
not  in  any  case  include  the  power  to  fix  the  price  of  the  use  of  private 
property,  and  of  services  connected  with  such  use,  unless  there  is  a 
legal  monopoly,  or  special  governmental  privileges  or  protection  have 
been  bestowed.  It  is  said  that  the  control  which  the  legislature  is 
permitted  to  exercise  over  the  business  of  common  carriers  is  a  sur- 
vival of  that  class  of  legislation  which  in  former  times  extended  to 
the  details  of  personal  conduct,  and  assumed  to  regulate  the  private 
affairs  and  business  of  men  in  the  minutest  particulars.  This  is 
true.  But  it  has  survived  because  it  was  entitled  to  survive.  By 
reason  of  the  changed  conditions  of  society,  and  a  truer  appreciation 
of  the  proper  functions  of  government,  many  things  have  fallen  out  of 
the  range  of  the  police  power  as  formerly  recognized,  the  regulation 
of  which  by  legislation  would  now  be  regarded  as  invading  personal 
liberty.  But  society  could  not  safely  surrender  the  power  to  regulate'' 
by  law  the  business  of  common  carriers.  Its  value  has  been  infinitely 
increased  by  the  conditions  of  modern  commerce,  under  which  the 
carrying  tcade  of  the  country  is,  to  a  great  extent,  absorbed  by  cor- 
porations, and,  as  a  check  upon  the  greed  of  these  consolidated  in- 
terests, the  legislative  power  of  regulation  is  demanded  by  the  most 
imperative  public  interests.  The  same  principle  upon  which  the  con-j 
trol  of  common  carriers  rests  has  enabled  the  state  to  regulate  in  the 
public  interest  the  charges  of  telephone  and  telegraph  companies,  and!; 
to  make  the  telephone  and  telegraph,  those  important  agencies  of  \ ' 
commerce,  subservient  to  the  wants  and  necessities  of  society,  i 
These  regulations  in  no  way  interfere  with  a  rational  liberty,  — 
liberty  regulated  by  law. 


56  PEOPLE  V.   BUDD. 

There  are  elements  of  publicity  in  the  business  of  elevating  grain 
which  peculiarly  aflfect  it  with  a  public  interest.  They  are  found  in 
the  nature  and  extent  of  the  business,  its  relation  to  the  commerce 
of  the  state  and  country,  and  the  practical  monopoly  enjoyed  by  those 
engaged  in  it.  The  extent  of  the  business  is  shown  by  the  facts  to 
which  we  have  referred.  A.  large  proportion  of  the  surplus  cereals 
of  the  country  passes  through  the  elevators  at  Buffalo,  and  finds  its 
way  through  the  Erie  Canal  and  Hudson  River  to  the  seaboard  at 
New  York,  from  whence  they  are  distributed  to  the  markets  of  the 
world.  The  business  of  elevating  grain  is  an  incident  to  the  busi- 
ness of  transportation.  The  elevators  are  indispensable  instrumen- 
talities in  the  business  of  the  common  carrier.  It  is  scarcely  too 
much  to  say  that,  in  a  broad  sense,  the  elevators  perform  the  work  of 
carriers.  They  are  located  upon  or  adjacent  to  the  waters  of  the  state, 
and  transfer  from  the  lake  vessels  to  the  canal-boats,  or  from  the 
canal-boats  to  the  ocean  vessels,  the  cargo  of  grain,  and  thereby 
perform  an  essential  service  in  transportation.  It  is  by  means  of 
the  elevators  that  transportation  of  grain  by  water  from  the  upper 
lakes  to  the  seaboard  is  rendered  possible.  It  needs  no  argument  to 
show  that  the  business  of  elevating  grain  has  a  vital  relation  to  com- 
merce in  one  of  its  most  important  aspects.  Every  excessive  charge 
made  in  the  course  of  the  transportation  of  grain  is  a  tax  on  com- 
merce, and  the  public  have  a  deep  interest  that  no  exorbitant  charges 
shall  be  exacted  at  any  point  upon  the  business  of  transportation. 
The  state  of  New  York,  in  the  construction  of  the  Erie  Canal,  ex- 
hibited its  profound  appreciation  of  the  public  interest  involved  in 
the  encouragement  of  commerce.  The  legislature  of  the  state,  in 
entering  upon  the  work  of  constructing  a  water-way  between  Lake 
Erie  and  the  Atlantic  Ocean,  sets  forth  in  the  preamble  of  the  orig- 
inating act  of  1817  its  reasons  for  that  great  undertaking.  "  It 
will,"  the  preamble  says,  "promote  agriculture,  manufactures,  and 
commerce,  mitigate  the  calamities  of  war,  and  enhance  the  bless- 
ings of  peace,  consolidate  the  Union,  and  advance  the  prosperity 
and  elevate  the  character  of  the  United  States."  In  the  construction 
and  enlargement  of  the  canal  the  state  has  expended  vast  sums  of 
money,  raised  by  taxation;  and  finally,  to  still  further  promote  the 
interests  of  commerce,  it  has  made  the  canal  a  free  highway,  and 
maintains  it  by  a  direct  tax  upon  the  people  of  the  state.  The  wise 
forecast  and  statesmanship  of  the  projectors  of  this  work  have  been 
amply  demonstrated  by  experience.  It  has  largely  contributed  to  the 
power  and  influence  of  the  state,  promoted  the  prosperity  of  tne 
people,  and  to  it,  more  perhaps  than  to  any  other  single  cause,  is  it 
owing  that  the  city  of  New  York  has  become  the  commercial  centre 
of  the  Union. 

Whatever  impairs  the  usefulness  of  the  canal  as  a  highway  of  com- 
merce involves  the  public  interest.  The  people  of  New  York  are 
greatly  interested  to  prevent  any  undue  exactions  in  the  business  of 
transportation  which  shall  enhance  the  cost  of  the  necessaries  of  life, 


] 


PEOPLE   V.   BUDD.  57 

or  force  the  trade  in  grain  into  channels  outside  of  our  state.  In 
Hooker  v.  Vandewater,  4  Denio,  349,  the  court  was  called  upon 
to  consider  the  validity  of  an  agreement  between  certain  transporta- 
tion lines  on  the  canal  to  keep  up  the  price  of  freights.  The  court 
held  the  agreement  to  be  illegal,  and  Jewett,  J.,  in  pronouncing  the 
judgment  of  the  court,  said :  "  That  the  raising  of  the  price  of  freights 
for  the  transportation  of  merchandise  or  passengers  upon  our  canals 
is  a  matter  of  public  concern,  and  in  which  the  public  have  a  deep 
interest,  does  not  admit  of  doubt.  It  is  a  familiar  maxim  that  com- 
petition is  the  life  of  trade.  It  follows  that  whatever  destroys,  or 
even  relaxes,  competition  in  trade  is  injurious,  if  not  fatal,  to  it." 
The  same  question  came  up  a  second  time  in  Stanton  v.  Allen,  5 
Denio,  434,  and  was  decided  the  same  way.  In  the  course  of  its 
opinion  the  court  said:  "As  these  canals  are  the  property  of  the 
state,  constructed  at  great  expense,  as  facilities  to  trade  and  com- 
merce, and  to  foster  and  encourage  agriculture,  and  are,  at  the  same 
time,  a  munificent  source  of  revenue,  whatever  concerns  their  employ- 
ment and  usefulness  deeply  involves  the  interests  of  the  whole  state." 
The  fostering  and  protection  of  commerce  was,  even  in  ancient 
times,  a  favorite  object  of  English  law  (Chit.  Prerog.  162);  and 
this  author  states  that  the  "  superintendence  and  care  of  commerce, 
on  the  success  of  which  so  materially  depends  the  wealth  and  pros- 
perity of  the  nation,  are  in  various  cases  allotted  to  the  king  by  the 
constitution,"  and  many  governmental  powers  vested  in  the  sovereign 
in  England  have  since  our  Revolution  devolved  on  the  legislatures 
of  the  states.  The  statutes  of  England  in  earlier  time  were  full  of 
oppressive  commercial  regulations,  now,  happily,  to  a  great  extent 
abrogated;  but  that  the  interests  of  commerce  are  matters  of  public 
concern  all  states  and  governments  have  fully  recognized. 

The  third  element  of  publicity  which  tends  to  distinguish  the 
business  of  elevating  grain  from  general  commercial  pursuits  is  the 
practical  monopoly  which  is  or  may  be  connected  with  its  prosecu- 
tion. In  the  city  of  Buffalo  the  elevators  are  located  at  the  junction 
of  the  canal  with  Lake  Erie.  The  owners  of  grain  are  compelled  to 
use  them  in  transferring  cargoes.  The  area  upon  which  it  is  practi- 
cable to  erect  them  is  limited.  The  structures  are  expensive,  and  the 
circumstances  afford  great  facility  for  combination  among  the  owners 
of  elevators  to  fix  and  maintain  an  exorbitant  tariff  of  charges,  and 
to  bring  into  the  combination  any  new  elevator  which  may  be  erected, 
and  employ  it  or  leave  it  unemployed,  but  in  either  case  permit  it  to 
shai'e  in  the  aggregate  earnings.  It  is  evident  that  if  such  a  combi- 
nation in  fact  exists  the  principle  of  free  competition  in  trade  is 
excluded.  The  precise  object  of  the  combination  would  be  to  prevent 
competition.  The  result  of  such  a  combination  would  necessarily  be 
to  subject  the  lake  vessels  and  canal-boats  to  any  exaction  which  the 
elevator  owners  might  see  fit  to  impose  for  the  service  of  the  elevator, 
and  the  elevator  owners  would  be  able  to  levy  a  tribute  on  the  com- 
munity, the  extent  of  which  would  be  limited  only  by  their  discretioiu 


58  PEOPLE   V.   BUDD. 

It  is  upon  these  various  circumstances  that  the  court  is  called  upon 
to  determine  whether  the  legislature  may  interfere  and  regulate  the 
charges  of  elevators.  It  is  purely  a  question  of  legislative  power. 
If  the  power  to  legislate  exists  the  court  has  nothing  to  do  with  the 
policy  or  wisdom  of  the  interference  in  the  particular  case,  or  with 
the  question  of  the  adequacy  or  inadequacy  of  the  compensation 
authorized.  "This  court,"  said  Chase,  C.  J.,  in  the  License  Tax 
Cases,  5  Wall.  469,  "  can  know  nothing  of  public  policy,  except 
from  the  constitution  and  the  laws,  and  the  course  of  administration 
and  decision.  It  has  no  legislative  powers.  It  cannot  amend  or 
modify  any  legislative  acts.  It  cannot  examine  questions  as  expe- 
dient or  inexpedient,  as  politic  or  impolitic.  Considerations  of  that 
sort  must,  in  general,  be  addressed  to  the  legislature.  Questions 
of  policy  determined  there  are  concluded  here."  Can  it  be  said,  in 
view  of  the  exceptional  circumstances,  that  the  business  of  elevating 
grain  is  not  "  affected  with  a  public  interest,"  within  the  language  of 
Lord  Hale,  or  that  the  case  does  not  fall  within  the  principle  which 
permits  the  legislature  to  regulate  the  business  of  common  carriers, 
ferrymen,  innkeepers,  hackmen,  and  the  interest  on  the  use  of  money? 
It  seems  to  us  that  speculative,  if  not  fanciful,  reasons  have  been 
assigned  to  account  for  the  right  of  legislative  regulation  in  these 
and  other  cases.  It  is  said  that  the  right  to  regulate  the  charges  of 
hackmen  springs  from  the  fact  that  they  are  assigned  standsjjLihie 
pubTTc-Btieets ;  that  the  legislature  may  regulate  the  toll  on  ferries 
becali8e~the  right  to  establish  a  ferry  is  a  franchise,  and  therefore 
the  business  is  subject  to  regulation;  that  the  right  to  regulate  wharf- 
age rested  upon  the  permission  of  the  sovereign  to  extend  wharves 
into  the  beds  of  navigable  streams,  the  title  to  which  was  in  the 
sovereign;  that  the  right  to  regulate  the  interest  on  the  use  of  money 
sprung  from  the  fact  that  taking  interest  was  originally  illegal  at 
common  law,  and  that  where  the  right  was  granted  by  statute  it  was 
taken  subject  to  regulation  by  law.  The  plain  reason,  we  think,  why 
I  the  charges  of  hackmen  and  ferrymen  were  made  subject  to  public 
regulation  is  that  they  were  common  carriers.  The  reason  assigned 
for  the  right  to  regulate  wharfage  in  England  overlooks  the  fact  that 
the  title  to  the  beds  of  navigable  streams  was  frequently  vested  in  a 
subject,  and  was  his  private  property,  subject  to  certain  public 
rights,  as  the  right  of  navigation,  and  no  distinction  as  to  the  power 
of  public  regulation  is  suggested  in  the  ancient  books  between 
whar^'es  built  upon  the  beds  of  navigable  waters,  the  title  to  which 
was  in  the  sovereign,  and  whan'es  erected  upon  navigable  streams, 
the  beds  of  which  belonged  to  a  subject.  The  obligation  of  the 
owner  of  the  only  wharf  in  a  newly  erected  port  to  charge  only  reas- 
onable wharfage  is  placed  by  Lord  Hale  on  the  ground  of  a  virtual, 
as  distinguished  from  a  legal,  monopolj'.  The  reason  assigned  for 
the  right  to  regulate  interest  takes  no  account  of  the  fact  that  the 
prohibition  by  the  ancient  common  law  to  take  interest  at  all  was  a 
regulation,  ajid.  tliis  manifestly  did  not  rest  upon  any  benefit  con* 


PEOPLE  V.   BUDD.  59 

ferred  on  the  lenders  of  money.  It  was  a  regulation  springing  from 
a  supposed  public  interest,  and  was  peculiarly  oppressive  on  a  certain 
class.  A  law  prohibiting  the  taking  of  interest  on  the  use  of  money 
would  now  be  deemed  a  violation  6i  a  right  of  property.  Butjthe 
material  point  is  thtit_tlie_j>rohibition,  as  well  as  the  regulation,  of 
interest,  was  based  upon  public  policy,  and  the  present  conceded  right 
of  regulation  does  not  have  its  foundation  in  any  grant  or  privilege  ^ 
conferred  by  the  sovereign.  The  attempts  made  to  place  the  right 
of  public  regulation  in  these  cases  upon  the  ground  of  special  priv- 
ilege conferred  by  the  public  on  those  affected  cannot,  we  think,  be 
supported.  The  underlying  principle  is  tliat.  business  of  certain  ^  / 
kinds  holds  such  a  peculiar  relation  toThe  public  interests  that  there  ' 
is  superinduced  upon  it  the  right  of  public  regulation.  We  rest  the 
power  of  the  legislature  to  control  and  regulate  elevator  charges 
on  the  nature  and  extent  of  the  business,  the  existence  of  a  virtual . 
monopoly,  the  benefit  derived  from  the  canal,  creating  the  business 
and  making  it  possible,  the  interest  to  trade  and  commerce,  the  rela- 
tion of  the  business  to  the  prosperity  and  welfare  of  the  state,  and 
the  practice  of  legislation  in  analogous  cases.  These  circumstances 
collectively  create  an  exceptional  case,  and  justify  legislative 
regulation. 

The  case  of  Munn  v.  Illinois  has  been  frequently  cited  with  ap- 
proval by  courts  in  other  states.  Nash  v.  Page,  80  Ky.  539 ;  Hockett 
V.  State,  105  Ind.  250;  Telephone  Co.  v.  Telegraph  Co.,  66  Md.  399; 
Davis  V.  State,  68  Ala.  58.  In  Nash  v.  Page  it  was  held,  upon  the 
doctrine  of  the  Munn  Case,  that  warehousemen,  for  the  public  sale 
and  purchase  of  tobacco  in  Louisville,  exercised  a  public  business, 
and  assumed  obligations  to  serve  the  entire  public,  and  could  not 
exclude  persons  from  buying  or  selling  tobacco  in  their  warehouses 
who  were  not  members  of  the  board  of  trade.  In  Hockett  v.  State 
it  was  held  that  the  relations  which  telephone  companies  have  assumed 
towards  the  public  imposed  public  obligations,  and  that  all  the  in- 
struments and  appliances  used  by  telephone  companies  in  the  prose- 
cution of  the  business  were,  in  legal  contemplation,  devoted  to  public 
use.  In  Telegraph  Co.  v.  Telephone  Co.  legislation  prohibiting 
discrimination  in  the  business  of  telegraphing  was  upheld  on  the 
doctrine  of  the  Munn  Case.  The  criticism  to  which  the  Munn  Case 
has  been  subjected  has  proceeded  mainly  on  a  limited  and  strict 
construction  and  definition  of  the  police  power.  The  ordinary  sub- 
jects upon  which  it  operates  are  well  understood.  It  is  most  fre- 
quently exerted  in  the  maintenance  of  public  order,  the  protection  of 
the  public  health  and  public  morals,  and  in  regulating  mutual  rights 
of  property,  and  the  use  of  property,  so  as  to  prevent  uses  by  one  of 
his  property  to  the  injury  of  the  property  of  another.  These  are 
instances  of  its  exercise,  but  they  do  not  bound  the  sphere  of  its 
operation.  In  the  King  Case,  110  N.  Y.  418,  it  was  given  a  much 
broader  scope,  and  was  held  to  be  efficient  to  prevent  discrimination 
on  the  ground  of  race  and  color  in  places  opened  for  public  enter* 


60  PEOPLE   V.   BUDD. 

tainment.  In  that  case  the  owner  of  the  skating-rink  derived  no 
special  privilege  or  protection  from  the  state.  The  public  held  no 
right,  in  any  legal  sense,  to  resort  to  his  premises.  His  permission, 
except  for  the  public  interest  involved,  was  revocable  as  to  the  whole 
community  or  any  individual  citizen.  But  it  was  held  that  so  long 
as  he  devoted  his  place  to  purposes  of  public  entertainment  he  sub- 
jected it  to  public  regulations.  There  is  little  reason,  under  our 
system  of  government,  for  placing  a  close  and  narrow  interpretation 
on  the  police  power,  or  in  restricting  its  scope  so  as  to  hamper  the 
legislative  power  in  dealing  with  the  varying  necessities  of  society, 
and  the  new  circumstances  as  they  arise,  calling  for  legislative  inter- 
vention in  the  public  interest  Life,  liberty,  and  property  have  a 
substantial  protection  against  serious  invasion  by  the  legislature  in 
the  traditions  of  the  English-speaking  race,  and  a  pervading  public 
sentiment  which  is  quick  to  resent  any  substantial  encroachment  upon 
personal  freedom  or  the  rights  of  property.  In  no  country  is  the 
force  of  public  opinion  so  direct  and  imperative  as  in  this.  The 
legislature  may  transgress  the  principles  of  the  Constitution.  It 
has  done  so  in  the  past,  and  it  may  be  expected  that  it  will  some- 
times do  so  in  the  future.  But  unconstitutional  enactments  have 
generally  been  the  result  of  haste  or  inadvertence,  or  of  transient  and 
unusual  conditions  in  times  of  public  excitement  which  have  been 
felt  and  responded  to  in  the  halls  of  legislation.  The  framers  of  the 
government  wisely  interposed  the  judicial  power,  and  invested  it 
with  the  prerogative  of  bringing  every  legislative  act  to  the  test  of 
the  Constitution.  But  no  serious  invasion  of  constitutional  guaran- 
ties by  the  legislature  can  for  a  long  time  withstand  the  searching 
influence  of  public  opinion,  which  sooner  or  later  is  sure  to  come  to 
the  side  of  law  and  order  and  justice,  however  much  for  a  time  it  may 
have  been  swayed  by  passion  or  prejudice,  or  whatever  aberration 
may  have  marked  its  course.  So,  also,  in  that  wide  range  of  legis- 
lative powers  over  persons  and  property  which  lie  outside  of  the  pro- 
hibitions of  the  Constitution,  and  which  inhere  of  necessity  in  the 
very  idea  of  government,  by  which  persons  and  property  may  be 
affected  without  transgressing  constitutional  guaranties,  there  is  a 
restraining  and  corrective  power  in  public  opinion  which  is  a  safe- 
guard of  tremendous  force  against  unwise  and  impolitic  legislation, 
hampering  individual  enterprise,  and  checking  the  healthful  stimulus 
of  self-interest,  which  are  the  life-blood  of  commercial  progress. 
The  police  power  may  be  used  for  illegitimate  ends,  although  no 
court  can  say  that  the  fundamental  law  has  been  violated.  There  is 
a  remedy  at  the  polls,  and  it  is  an  efficient  remedy  if,  at  the  bottom, 
the  legislation  under  it  is  oppressive  and  unjust.  The  remedy  by 
taking  away  the  power  of  the  legislature  to  act  at  will  would,  indeed, 
be  radical  and  complete.  But  the  moment  the  police  power  is  de- 
stroyed or  curbed  by  fixed  and  rigid  rules  a  danger  is  introduced  into 
our  system  which  would,  we  think,  be  far  greater  than  results  from 
an  occasional  departure  by  the  legislature  from  correct  principles  of 


BRASS   V.   NORTH   DAKOTA.  61 

I 

government.  "We  here  conclude  our  examination  of-  the  important 
question  presented  by  this  case.  The  division  of  opinion  in  this  and 
otlier  courts  is  evidence  of  the  difficulty  which  surrounds  it.  But  it  is 
ever  to  be  remembered  that  a  statute  must  stand  so  long  as  any  reason- 
able doubt  can  be  indulged  in  favor  of  its  constitutionality.  We  are  of 
opinion  that  the  statute  of  1888  is  constitutional,  as  a  whole,  and  that 
although  it  may  comprehend  cases  which,  standing  alone,  might  not 
justify  legislative  interference,  yet  they  must  be  governed  by  the 
general  rule  enacted  by  the  legislature.  The  judgment  should  be 
affirmed.^ 


BRASS  V.   NORTH  DAKOTA  ex  rel.   STOESER. 

Supreme  Court  of  the  United  States,  1894. 

[153  U.  S.  391.»] 

NoRMAK  Brass,  the  plaintiff  in  error,  owns  and  operates  a  grain  ele- 
vator in  the  village  of  Grand  Harbor,  in  the  State  of  North  Dakota. 
The  defendant  in  error,  Louis  W.  Stoeser,  owns  a  farm  adjoining  the 
village,  on  which  in  the  jear  1891  he  raised  about  four  thousand  bushels 
of  wheat.  On  September  30,  1891,  Stoeser  applied  to  store  a  part  of 
his  wheat-crop  for  the  compensation  fixed  by  section  eleven  of  chapter 
126  of  the  Laws  of  North  Dakota  for  the  year  1891,  which  Brass  re- 
fused to  do  unless  paid  therefor  at  a  rate  in  excess  of  that  fixed  by  the 
statute.  On  this  refusal  Stoeser  filed  in  the  District  Court  of  Ramsey 
Count}',  North  Dakota,  a  petition  for  an  alternative  writ  of  mandamus. 
The  District  Court  granted  an  alternative  writ  of  m,andamus  (as 
follows).  .  .  . 

Mr.  Justice  Shiras  .  .  .  The  legislature  of  the  State  of  North  Da- 
kota, by  an  act  approved  March  7,  1891,  c.  126,  Laws  of  1891,  p.  321, 
and  entitled  "An  Act  to  regulate  grain  warehouses  and  the  weighing  and 
handling  of  grain,  and  defining  the  duties  of  the  railroad  commissioners 
in  relation  thereto,"  enacted,  in  the  fourth  section  thereof,  that  "all 
buildings,  elevators,  or  warehouses  in  this  State,  erected  and  operated, 
or  which  may  hereafter  be  erected  and  operated  by  any  person  or  per- 
sons, association,  copartnership,  corporation,  or  trust,  for  the  purpose 
of  buying,  selling,  storing,  shipping,  or  handling  grain  for  profit,  are 
hereby  declared  public  warehouses,  and  the  person  or  persons,  associa- 
tion, copartnership,  or  trust  owning  or  operating  said  building  or  build- 
ings, elevator  or  elevators,  warehouse  or  warehouses,  which  are  now  or 
may  hereafter  be  located  or  doing  business  within  this  State,  as  above 

1  Compare :  Railroad  Co.  v.  Stockyard  Co.,  45  N.  J.  Eq.  50 ;  Belcher  v.  Grain  Ele- 
vator, 101  Mo.  192;  McCallough  v.  Brown,  41  S.  C.  247;  Steamship  Co.  v.  Elevator 
Co.,  75  Minn.  312.  — Ed. 

2  This  case  is  abridged.  —  Ed. 


62  BRASS  V.   NORTH   DAKOTA. 

described,  whether  said  owners  or  o|)erators  reside  within  this  State  or 
not,  are  public  warehousemen  within  the  meaning  of  this  act,  and  none 
of  the  provisions  of  this  act  shall  be  construed  so  as  to  permit  discrim- 
ination with  reference  to  the  buying,  receiving,  and  handling  of  grain 
of  standard  grades,  or  in  regard  to  parties  offering  such  grain  for  sale, 
storage,  or  handling  at  such  public  warehouses,  while  the  same  are  in 
operation;"  and  in  the  flfth  section,  "that  the  proprietor,  lessee,  or 
manager  of  any  public  warehouse  or  elevator  in  this  State  shall  file  with 
the  railroad  commissioners  of  the  State  a  bond  to  the  State  of  North 
Dakota,  with  good  and  sufficient  sureties,  to  be  approved  by  said  com- 
missioners of  railroads,  in  the  penal  sum  of  not  less  than  $5,000  nor 
more  than  $75,000,  in  the  discretion  of  said  commissioners,  conditioned 
for  the  faithful  performance  of  duty  as  public  warehousemen,  and  a 
compliance  with  all  the  laws  of  the  State  in  relation  thereto ; "  and  m 
the  eleventh  section  thereof,  "  the  charges  for  storing  and  handling  of 
grain  shall  not  be  greater  than  the  following  schedule :  For  receiving, 
elevating,  insuring,  delivering,  and  twent}'  days'  storage,  two  cents  per 
bushel.  Storage  rates,  after  the  first  twenty  days,  one-half  cent  for 
each  fifteen  days  or  fraction  thereof,  and  shall  not  exceed  five  cents  for 
six  months.  The  grain  shall  be  kept  insured  at  the  expense  of  the 
warehousemen  for  the  benefit  of  the  owner ;  "  and  bv  the  twelfth  sec- 
tion it  is  provided  that  "  any  person,  firm,  or  association,  or  any  repre- 
sentative thereof,  who  shall  fail  to  do  and  keep  the  requirements  as 
herein  provided,  shall  be  deemed  guilt}'  of  a  misdemeanor,  and  siiall,  on 
conviction  thereof,  be  subject  to  a  fine  of  not  less  than  two  hundred 
dollars  nor  more  than  one  thousand  dollars,  and  be  liable  in  addition 
thereto  to  imprisonment  for  not  more  than  one  3'ear  in  the  state  peni- 
tentiary', at  the  discretion  of  the  court." 

In  October,  1891,  in  the  District  Court  of  the  Second  Judicial  Dis- 
trict of  the  State  of  North  Dakota,  in  proceedings  the  nature  of  which 
sufficient!}'  appears  in  the  previous  statement  of  facts,  the  validit}'  of 
this  statute  was  sustained,  and  the  judgment  of  that  court  was,  on 
error,  duly  affirmed  by  the  Supreme  Court  of  the  State.  Brass  v.  North 
Dakota,  52  N.  W.  Rep.  408. 

In  the  cases  thus  brought  to  this  court  from  the  States  of  Illinois  and 
New  York,  we  were  asked  to  declare  void  statutes  regulating  the  affairs 
of  grain  warehouses  and  elevators  within  those  States,  and  held  valid 
by  their  highest  courts,  because  it  was  claimed  that  such  legislation  was 
repugnant  to  that  clause  of  the  eighth  section  of  article  1  of  the  Con- 
stitution of  the  United  States,  which  confers  upon  Congress  power  to 
regulate  commerce  with  foreign  nations  and  among  the  several  States, 
and  to  the  Fourteenth  Amendment,  which  ordains  that  no  State  shall 
deprive  any  person  of  life,  liberty,  or  property  without  due  process  of 
law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws. 

In  the  case  now  before  us  the  same  contentions  are  made,  but  we  are 
not  asked  to  review  our  decisions  made  in  the  previous  cases.    Indeed, 


BRASS   V.    NORTH   DAKOTA.  63 

their  soundness  is  tacitly  admitted  in  the  briefs  and  argument  of  the 
counsel  of  the  plaintiff  in  error.  But  it  is  said  that  those  cases  arose 
out  of  facts  so  peculiar  and  exceptional,  and  so  different  from  those  of 
the  present  case,  as  to  render  the  reasoning  there  used,  and  the  conclu- 
sions reached,  now  inapplicable. 

The  concession,  then,  is  that,  upon  the  facts  found  to  exist  by  the 
legislatures  of  Illinois  and  New  York,  their  enactments  were  by  the 
courts  properly  declared  valid,  and  the  contention  is  that  the  facts  upon 
which  the  legislature  of  North  Dakota  proceeded,  and  of  which  we  can 
take  notice  in  the  present  case,  are  so  different  as  to  call  for  the 
application  of  other  principles,  and  to  render  an  opposite  conclusion 
necessar}'. 

The  differences  in  the  facts  of  the  respective  cases,  to  which  we  are 
pointed,  are  mainly  as  follows :  In  the  first  place,  what  may  be  called  a 
geographical  difference  is  suggested,  in  that  the  operation  of  the  Illi- 
nois and  New  York  statutes  is  said  to  be  reLiricted  to  the  city  of  Chi- 
cago in  the  one  case,  and  to  the  cities  of  Buffalo,  New  York,  and 
Brookl3n  in  the  other,  while  the  North  Dakota  statute  is  applicable  to 
the  territory  of  the  entire  State. 

It  is,  indeed,  true  that  while  the  terms  of  the  Illinois  and  New  York 
statutes  embrace  in  both  cases  the  entire  State,  yet  their  behests  are 
restricted  to  cities  having  not  less  than  a  pi'escribed  number  of  inhabi- 
tants, and  that  there  is  no  such  restriction  in  the  North  Dakota  law. 

Upon  this  it  is  argued  that  the  statutes  of  Illinois  and  New  York 
are  intended  to  operate  in  great  trade  centres,  where,  on  account  of  the 
business  being  localized  in  the  hands  of  a  few  persons  in  close  prox- 
imity to  each  other,  great  opportunities  for  combinations  to  raise  and 
control  elevating  and  storage  charges  are  afforded,  while  the  wide  ex- 
tent of  the  State  of  North  Dakota  and  the  small  population  of  its 
country  towns  and  villages  are  said  to  present  no  such  opportunities. 

The  considerations  mentioned  are  obviously  addressed  to  the  legisla- 
tive discretion.  It  can  scarcel}-  be  meant  to  contend  that  the  statutes  of 
Illinois  and  New  York,  valid  in  their  present  form,  would  become  illegal 
if  the  law  makers  thought  fit  to  repeal  the  clauses  limiting  their  operation 
to  cities  of  a  certain  size,  or  that  the  statute  of  North  Dakota  would  at 
once  be  validated  if  one  or  more  of  her  towns  were  to  reach  a  popu- 
lation of  one  hundred  thousand,  and  her  legislature  were  to  restrict  the 
operation  of  the  statute  to  such  cities. 

Again,  jt  is  said  that  the  modes  of  carrying  on  the  business  of  ele- 
vating and  storing  grain  in  North  Dakota  are  not  similar  to  those  pur- 
sued in  the  Eastern  cities;  that  the  great  elevators  used  in  trans-shipping 
grain  from  the  Lakes  to  the  railroads  are  essential ;  and  that  ihose  who 
own  them,  if  uncontrolled  by  law,  could  extort  such  charges  as  they 
pleased ;  and  great  stress  is  laid  upon  expressions  used  in  our  i)revious 
opinions,  in  which  this  business,  as  carried  on  at  Chicago  and  Buffalo, 
is  spoken  of  as  a  practical  monopoly,  to  which  shippers  and  owners  of 
grain  are  com|;>elled  to  resort.      Tlie  surroundings  in  an  agricultural 


64  BRASS    V.   NORTH   DAKOTA. 

State,  where  land  is  cheap  in  price  and  limitless  in  quantit}',  are  thought 
to  be  widely  different,  and  to  demand  different  regulations. 

These  arguments  are  disposed  of,  as  we  think,  by  the  simple  observa- 
tion, already  made,  that  the  facts  rehearsed  are  matters  for  those  who 
make,  not  for  those  who  interpret,  the  laws.  When  it  is  once  admitted, 
as  it  is  admitted  here,  that  it  is  competent  for  the  legislative  power  to 
control  the  business  of  elevating  and  storing  grain,  whether  carried  on 
by  individuals  or  associations,  in  cities  of  one  size  and  in  some  circum- 
stances, it  follows  that  such  power  may  be  legally  exerted  over  the  same 
business  when  carried  on  in  smaller  cities  and  in  other  circumstances. 
It  may  be  conceded  that  that  would  not  be  wise  legislation  which 
provided  the  same  regulations  in  ever}-  case,  and  overlooked  differ- 
ences in  the  facts  that  called  for  regulations.  But,  as  we  have  no 
right  to  revise  the  wisdom  or  expediency'  of  the  law  in  question,  so  we 
would  not  be  justified  in  imputing  an  improper  exercise  of  discretion  to 
the  legislature  of  North  Dakota.  It  ma}*  be  true  that,  in  the  cases 
cited,  the  judges  who  expressed  the  conclusions  of  the  court  entered,  at 
some  length,  into  a  defence  of  the  proprietj-  of  the  laws  which  the}' 
were  considering,  and  that  some  of  the  reasons  given  for  sustaining 
them  went  rather  to  their  expediency  than  to  their  validity.  Such 
efforts,  on  the  part  of  judges,  to  justify  to  citizens  the  vf&ya  of  legisla- 
tures are  not  without  value,  though  the}'  are  liable  to  be  met  by  the 
assertion  of  opposite  views  as  to  the  practical  wisdom  of  the  law,  and 
thus  the  real  question  at  issue,  namely,  the  power  of  the  legislature  to 
act  at  all,  is  obscured.  Still,  in  the  present  instance,  the  obvious  aim 
of  the  reasoning  that  prevailed  was  to  show  that  the  subject-matter  of 
these  enactments  fell  within  the  legitimate  sphere  of  legislative  power, 
and  that,  so  far  as  the  laws  and  Constitution  of  the  United  States  were 
concerned,  the  legislation  in  question  deprived  no  person  of  his  prop- 
erty without  due  process  of  law,  and  did  not  interfere  with  Federal 
jurisdiction  over  Interstate  commerce. 

Another  argument  advanced  is  based  on  the  admitted  allegation  that 
the  principal  business  of  the  plaintiff  in  error,  in  connection  with  his 
warehouse,  is  in  storing  his  own  grain,  and  that  the  storage  of  the  grain 
of  other  persons  is  and  always  has  been  a  mere  incident,  and  it  is  said 
that  the  effect  of  this  law  will  be  to  compel  him  to  renounce  his  princi- 
pal business  and  become  a  mere  warehouseman  for  others.  We  do  not 
understand  this  law  to  require  the  owner  of  a  warehouse,  built  and  used 
by  him  only  to  store  his  own  grain,  to  receive  and  store  the  grain  of 
others.  Such  a  duty  only  arises  when  he  chooses  to  enter  upon  the 
business  of  elevating  and  storing  the  grain  of  other  persons  for  profit. 
Then  he  becomes  subject  to  the  statutory  regulations,  and  he  cannot 
escape  them  by  asserting  that  he  also  elevates  and  stores  his  own  grain 
in  the  same  warehouse.  As  well  might  a  person  accused  of  selling 
liquor  without  a  license  urge  that  the  larger  part  of  his  liquors  were 
designed  for  his  own  consumption,  and  that  he  only  sold  the  surplus  as 
a  mere  incident 


OPINIONS   OF  THE  JUSTICES.  65 

Another  objection  to  the  law  is  found  in  its  provision  that  the  ware- 
houseman shall  insure  the  grain  of  others  at  his  own  expense.  This 
may  be  burdensome,  but  it  affects  alike  all  engaged  in  the  business,  and, 
if  it  be  regarded  as  contrary  to  sound  public  policy,  those  affected  must 
instruct  their  representatives  in  general  assembly  met  to  provide  a 
remedy. 

The  plaintiff  in  error,  in  his  answer  to  the  writ  of  mandamus^  based 
his  defence  whollj'  upon  grounds  arising  under  the  Constitution  of  the 
State  and  of  the  United  States.  We  are  limited  by  this  record  to  the 
questions  whether  the  legislature  of  North  Dakota,  in  regulating  by  a 
general  law  the  business  and  charges  of  public  warehousemen  engaged 
in  elevating  and  storing  grain  for  profit,  denies  to  the  plaintiff  in  error 
the  equal  protection  of  the  laws  or  deprives  him  of  his  property  with- 
out due  process  of  law,  and  whether  such  statutory'  regulations  amount 
to  a  regulation  of  commerce  between  the  States.  The  allegations  and 
arguments  of  the  plaintiff  in  error  have  failed  to  satisfy  us  that  an}' 
solid  distinction  can  be  found  between  the  cases  in  which  those  ques- 
tions have  been  heretofore  determined  by  this  court  and  the  present 
one.     The  judgment  of  the  court  below  is  accordingly         Affirmed. 

Mr.  Justice  Brewer,  with  whom  concurred  Mr.  Justice  Field,  Mr. 
Justice  Jackson,  and  Mr.  Justice  White,  dissenting. 


OPINIONS   OF  THE  JUSTICES. 
Massachusetts  Supreme  Court,  1904. 

[182  Mass.  605.] 

[At  the  time  of  the  scarcit}'  of  coal  in  the  early  part  of  1903  by  rea- 
son of  the  strike  of  Pennsylvania  miners,  the  Legislature  of  Massa- 
chusetts asked  the  judges  of  the  Massachusetts  Supreme  Court  a  series 
of  questions  as  to  its  power  to  authorize  cities  or  towns  to  purchase 
and  sell  coal  and  wood.  Extract  from  the  replies  signed  by  the 
majority  of  the  judges  is  subjoined.] 

We  do  not  deem  it  necessary  to  restate  the  reasons  and  arguments 
which  have  led  legislatures  and  courts  to  nearl}^  if  not  quite,  uniform 
conclusions  in  regard  to  the  attitude  which  the  government  should 
maintain,  under  existing  constitutions,  towards  the  transaction  of  com- 
mon kinds  of  business  which  can  be  conducted  successfulh*  b}'  indi- 
viduals, without  the  use  of  any  governmental  function.  These  can  be 
found  in  numerous  published  opinions  of  the  courts,  some  of  which  are 
cited  in  the  opinion  first  above  mentioned. 

It  is  established  that  under  our  Constitution  private  property  cannot 
be  taken  from  its  owner  except  for  a  public  use.  This  is  equally  true 
whether  the  property  is  a  dwelling  house  taken  bj'  right  of  eminent 


66  OPINIONS   OF   THE   JUSTICES. 

domain,  or  money  demanded  by  the  tax  collector.  The  establishment 
of  a  business  like  the  buying  and  selling  of  fuel  requires  the  expendi- 
ture of  money.  If  this  is  done  by  an  agenc}'  of  the  government  there 
is  no  wa}'  to  obtain  the  money  except  by  taxation.  Money  cannot  be 
raised  by  taxation  except  for  a  public  use. 

Until  within  a  few  3ears  it  generally  has  been  conceded,  not  onh' 
that  it  would  not  be  a  public  use  of  money  for  the  government  to 
expend  it  in  the  establishment  of  stores  and  shops  for  the  purpose  of 
carrying  on  a  business  of  manufacturing  or  selling  goods  in  competition 
with  individuals,  but  also  that  it  would  be  a  perversion  of  the  function 
of  government  for  the  State  to  enter  as  a  competitor  into  the  field  of 
industrial  enterprise,  with  a  view  either  to  the  profit  that  could  be 
made  through  the  income  to  be  derived  from  the  business,  or  to  the 
indirect  gain  that  might  result  to  purchasers  if  prices  were  reduced 
by  governmental  competition.  There  may  be  some  now  who  believe  it 
would  be  well  if  business  was  conducted  bj'  the  people  collective!}',  liv- 
ing as  a  community,  and  represented  by  the  government  in  the  man- 
agement of  ordinary  industrial  affairs.  But  nobody  contends  that  such 
a  system  is  possible  under  our  Constitution.  It  is  plain,  however,  that 
taxation  of  the  people  to  establish  a  cit}'  or  town  in  the  proprietorship 
of  an  ordinary-  mercantile  or  manufacturing  business  would  be  a  long 
step  towards  it.  If  men  of  propert}-,  owning  coal  and  wood  yards, 
should  be  compelled  to  pay  taxes  for  the  establishment  of  a  rival  coal 
3ard  by  a  cit}'  or  town,  to  furnish  fuel  at  cost,  the}'  would  thus  be 
forced  to  make  contributions  of  mone}'  for  their  own  impoverishment ; 
for  if  the  coal  yard  of  the  city  or  town  was  conducted  economicall}', 
they  would  be  driven  out  of  business.  A  similar  result  would  follow 
if  the  business  of  furnishing  provisions  and  clothing,  and  other  neces- 
saries of  life,  were  taken  up  b}'  the  government;  and  men  who  now 
earn  a  livelihood  as  proprietors  would  be  forced  to  work  as  employees 
in  stores  and  shops  conducted  b}*  the  public  authorities. 

Except  for  the  severelj'  onerous  conditions  from  which  we  are  now 
Buffering,  the  causes  of  which  arose  outside  of  this  State  beyond  the 
reach  of  our  legislative  enactments,  there  is  nothing  materially  different 
between  the  proposed  establishment  of  a  governmental  agenc}'  for  the 
sale  of  fuel,  and  the  establishment  of  a  like  agency  for  the  sale  of  other 
articles  of  daily  use.  The  business  of  selling  fuel  can  be  conducted 
easily  by  individuals  in  competition.  It  does  not  require  the  exercise 
of  any  governmental  function,  as  does  the  distribution  of  water,  gas, 
and  electricit}',  which  involves  the  use  of  the  public  streets  and  the 
exercise  of  the  right  of  eminent  domain.  It  is  not  important  that  it 
should  be  conducted  as  a  single  large  enterprise  with  supplies  ema- 
nating from  a  single  source,  as  is  required  for  the  economical  manage- 
ment of  the  kinds  of  business  last  mentioned.  It  does  not  even  call 
for  the  investment  of  a  large  capital,  but  it  can  be  couducted  profitably 
by  a  single  individual  of  ordinary  means. 


RATCLIFF   V.  WICHITA   UNION   STOCKYARDS  COMPANY.  67 

RATCLIFF  V.  WICHITA  UNION  STOCKYARDS  COMPANY. 
Supreme  Court  of  Kansas,  1906. 

[86  Pac.  150.1] 

Action  by  J.  W.  Ratcliff  to  recover  charges  on  live  stock  beyond 
the  statutory  rate  on  cattle  placed  in  and  marketed  at  the  Wichita 
Union  Stockyards. 

Johnston,  C.  J.  The  operation  of  stockyards  has  more  of  the 
characteristics  of  a  public  business  than  the  carrying  on  of  an  elevator 
or  a  warehouse.  It  possesses  the  market  features,  including  considera- 
tions of  sanitation  and  health,  and  it  also  has  more  of  the  monopolistic 
feature.  The  stockyards  in  question  are  situated  in  a  commercial 
center  and  constitute  the  public  live  stock  market  for  a  great  region, 
largely  devoted  to  live  stock  business.  The  principal  railroads  of  the 
Southwest  country  enter  Wichita,  and  their  tracks  all  unite  in  the 
stockj'ards,  and  the  business  is  therefore  intimately  related  to  the  busi- 
ness of  transportation.  Here  the  stock  raisers  and  shippers  meet  and 
deal  with  the  packers  and  purchasers,  and  here  live  stock  in  transit 
from  Oklahoma,  Texas,  and  Colorado  to  more  distant  markets  are 
unloaded  for  rest,  feeding,  and  care.  No  other  market  exists  nearer 
than  Kansas  City  on  the  east,  which  is  about  260  miles  away,  and  the 
nearest  ones  on  the  west  are  Denver  and  Peublo,  about  500  miles 
away.  Because  of  the  nature  of  the  business  and  the  railroad  facilities 
the  estabhshment  of  other  markets  at  or  near  Wichita  is  impracticable, 
and  hence  these  stockyards  are,  and  of  necessity  will  be,  the  only 
available  place  where  the  breeders,  feeders,  and  dealers  of  a  great 
scope  of  country  can  convenientl}'^  market  their  live  stock.  The  com- 
pany has,  therefore,  a  practical  monopolj'  of  a  vast  business  affecting 
thousands  of  people  who  are  almost  obliged  to  deal  at  that  market  and 
at  the  rates  which  the  company  may  choose  to  charge.  To  the  com- 
pany is  committed  the  feeding,  watering,  and  weighing  of  cattle  sent 
from  great  distances,  whether  accompanied  by  the  owner  or  not,  and 
this  is  an  additional  reason  for  regulation  and  control.  In  Cotting  v. 
Kansas  City  Stockyards  Company  (C.  C),  82  Fed.  850,  it  was  held  that 
"  a  stockyard  business  located  in  a  large  city  at  the  junction  of  many 
railroad  lines,  which  furnishes  the  only  proper  facilities  for  the  unload- 
ing, resting,  and  feeding  of  live  stock  in  transit  and  for  the  sale  of 
cattle  in  said  city,  is  affected  with  a  public  use  so  as  to  be  subject  to 
legislative  control,  and  the  proper  legislative  body  may  prescribe  a 
maximum  rate  of  compensation  for  the  care  and  handling  of  stock 
thereat."  This  case  was  taken  to  the  Supreme  Court  of  the  United 
States,  where  it  was  reversed  because  of  a  discriminatory  provision  of 
the  statute  under  consideration.  In  determining  that  question,  how- 
ever, Justice  Brewer,  who  rendered  the  decision,  in  commenting  on  the 
nature  of  the  business  of  stockyards  and  the  interest  of  the  public  in  it, 
1  Only  one  extract  U  printed.  —  Ed. 


68  BATCLIFF  V.   WICHITA  UNION   STOCKYARDS  COMPANY. 

took  occasion  to  saj^:  "Tested  bj-  the  rule  laid  down  in  Miinn  v. 
Illinois,  it  may  be  conceded  that  the  state  has  the  power  to  make 
reasonable  regulation  of  the  charges  for  services  rendered  b}'  the  stock- 
3'ards  company'.  Its  8tock3'ards  are  situated  in  one  of  the  gatewa3S  of 
the  west,  and  so  located  that  they  furnish  important  facilities  to  all 
seeking  transportation  of  cattle.  While  not  a  common  carrier,  nor 
engaged  in  any  distinctively  public  employment,  it  is  doing  a  work  in 
which  the  public  has  an  interest,  and  therefore  must  be  considered  as 
subject  to  governmental  regulation."  Cotting  v.  Kansas  City  Stock- 
yards, 183  U.  S.  79,  22  Sup.  Ct.  30,  46  L.  Ed.  92.  In  Delaware,  etc., 
Railroad  Company  v.  Central  Stockyards  Compan}-,  45  N.  J.  Eq. 
50,  17  Atl.  146,  6  L.  R.  A.  855,  the  court  discussed  the  nature  of 
the  business,  and  held  that  the  business  of  maintaining  stockyards 
corresponds  with  that  of  warehousemen,  and  therefore  is  subject  to 
the  same  general  principles  of  law.  It  was  held,  however,  that  in 
the  absence  of  a  statute  a  court  of  chancery  could  not  impose  reg- 
ulations upon  those  engaged  in  the  business  without  usurping  leg- 
islative power.  In  Stock  Exchange  v.  Board  of  Trade,  127  111. 
153,  19  N.  E.  855,  2  L.  R.  A.  411,  11  Am.  St.  Rep.  107,  it  was 
held  that  the  market  quotations  and  reports  of  the  board  of  trade 
of  Chicago  had  become  affected  with  a  public  interest,  and  so  long  as 
it  continued  in  business  it  must  furnish  reports  and  quotations  to  all 
who  may  desire  them  for  lawful  purposes,  and  upon  the  same  terms. 
In  a  later  case  before  the  same  court  it  was  held  that  the  Chicago  Live 
Stock  Exchange  could  not  be  treated  as  a  public  market  in  the  ordinary 
sense,  but  in  the  course  of  the  decision  it  was  said  that  the  character 
and  magnitude  of  its  business  was  such  as  "  to  warrant  the  Legislature 
in  the  exercise  of  its  legislative  discretion  in  declaring  a  public  use,  and 
placing  said  business  under  local  control  and  supervision,  but  such 
power,  in  our  opinion,  does  not  rest  with  the  courts."  American  Live 
Stock  Commission  Company  v.  Chicago  Live  Stock  Exchange,  143  111. 
210,  32  N.  E.  274,  18  L.  R.  A.  190,  36  Am.  St.  Rep.  385.  See,  also, 
Head  v.  Amoskeag  Manufacturing  Compan}',  113  U.  S.  9,  5  Sup.  Ct 
441,  28  L.  Ed.  889 ;  State  v.  Edwards,  86  Me.  102,  29  Atl.  947,  25  L. 
R.  A.  504,  41  Am.  St.  Rep.  528,  Nash  v.  Page,  80  Ky.  539,  44  Am. 
Rep.  490  ;  Davis  v.  State,  68  Ala.  58,  44  Am.  Rep.  128  ;  Baker  v.  State, 
54  Wis.  368,  12  N.  W.  12 ;  Breechbill  v.  Randall,  102  Ind.  528,  1  N. 
E.  362,  52  Am.  Rep.  695 ;  State  ex  rel  v.  Gas  Co.,  34  Ohio  St.  572,  32 
Am.  Rep.  390 ;  Freund  on  Police  Power,  §  373  ;  Cooley's  Constitutional 
Limitations,  870  ;  1  Tiedeman  on  State  and  Federal  Control,  §  95.  We 
conclude  that  the  stockyards  business  as  conducted  in  Wichita  is 
clothed  with  a  public  interest,  and  that  the  state  in  the  exercise  of  its 
police  power  may,  within  constitutional  limitations,  subject  it  to  regu- 
lation and  control.^ 

*  See  also  Cotting  v.  Kansas  City  Stockyards  Co.,  IM  U.  S.  79.    Bat  see  Delawara 
A  W.  Ry.  Co.  V.  Central  Stockyards  Co.,  46  N.  J.  L.  280.  —  Ed. 


STATE  V.   JACKSONVILLE  TERMINAL  CO.  69 

STATE  V.  JACKSONVILLE   TERMINAL   CO. 
Supreme  Court  op  Florida,  1900. 

[41  Fla.  377.1] 

XI.  Ninth  and  eleventh  grounds  of  the  motion  to  quash :  The  reg- 
ulation made  by  the  commissioners,  under  the  power  conferred  upon 
them,  in  this  case  is  in  no  sense  an  "  appropriation  "  of  any  privato 
property  or  right  of  way  within  the  meaning  of  section  29,  Art.  XVI 
of  the  constitution,  so  as  to  require  the  compensation  therefor  to  be 
ascertained  by  a  jury  of  twelve  men.  The  defendant  in  error,  as  we 
have  seen,  had  devoted  its  property  to  a  use  essentially  public,  is  per- 
forming services  of  a  public  nature,  and  is  subject  to  be  controlled  by 
the  public  for  public  welfare.  That  use  to  which  it  has  voluntarily 
devoted  its  property  is  to  furnish  passenger  terminal  facilities  to  rail- 
road common  carriers.  It  is  discriminating  among  the  railroads  that 
it  will  serve,  and  the  commissioners  under  power  granted  them  by  the 
legislature  have  determined  that  such  discrimination  as  against  a  par- 
ticular railroad  is  unjust  and  contrary  to  the  best  interest  and  conven- 
ience of  the  public.  It  has,  therefore,  made  a  regulation  that  this 
railroad  be  admitted  to  the  facilities  which  the  defendant  in  error  is 
furnishing  other  railroad  common  carriers  upon  payment  of  reasonable 
compensation.  It  is  no  more  an  appropriation  of  the  property  of  the 
terminal  company  than  is  the  law  which  requires  common  carriers  to 
transport  all  persons  at  a  reasonable  rate  of  compensation,  or  the  law 
which  requires  an  inn-keeper  to  furnish  accommodations  to  all  who 
apply,  and  at  reasonable  rates  if  fixed  by  the  legislature.  "While  it 
would  seem  that  one  was  as  much  an  appropriation  of  property  as 
another,  it  surely  will  not  be  contended  that  a  passenger  or  a  traveller 
must  condemn  his  way  into  a  railroad  passenger  car  or  hotel  in  order 
to  secure  the  transportation  of  the  lodging  to  which  he  is  by  the  law 
entitled.  There  is  a  very  clear  distinction  between  a  taking  or  an 
appropriation  of  property  for  a  public  use  and  regulating  the  use  of 
property  devoted  to  a  use  in  which  the  public  has  an  interest.  The 
latter  is  an  exercise  of  the  police  power,  as  it  is  called ;  the  former  of 
the  power  of  eminent  domain.  The  State  in  the  former  case  compels 
the  dedication  of  the  property  or  some  interest  therein  to  a  public  use, 
or,  if  already  dedicated  to  one  public  use,  then  to  another.  In  the  lat- 
ter, the  owner  has  voluntarily  or  in  pursuance  of  the  provisions  of  its 
charter,  dedicated  the  property  to  a  use  in  which  the  public  has  an 
interest,  and  the  use  of  that  property  so  dedicated  is  merely  regulated 
and  controlled  for  the  public  welfare.  In  this  case  the  regulation  com- 
plained of  does  not  compel  the  defendant  in  en'or  to  dedicate  its  prop- 

1  Only  one  point  is  printed.  —  Ed. 


70  TRANSPORTATION   CO.   V.   STANDARD   OIL   CO. 

erty  to  the  public  use,  or  to  a  different  public  use.  It  has  already 
voluntarily  and  presumably  in  pursuance  of  its  charter  powers  devoted 
its  property  to  a  public  use  by  undertaking  to  furnish  for  railroad 
common  carriers  and  the  public  served  by  them  terminal  facilities  to 
aid  and  enable  these  public  agencies  to  perform  their  obligations  to 
the  public  and  to  assist  them  in  such  performance.  The  State  regu- 
lates this  use  of  the  property  by  requiring  that  the  charges  for  such  uses 
and  privileges  shall  be  reasonable,  and  by  requiring  the  terminal  com- 
pany in  performing  the  services  and  conducting  the  business  which  it 
has  so  voluntarily  assumed,  to  perform  such  services  and  conduct 
such  business  impartially  and  without  discrimination  wherever  the  pub- 
lic interests  require  them  to  be  so  performed  and  conducted.  The 
regulation  complained  of  does  not  appropriate  property ;  it  merely 
prevents  abuses,  prohibits  unjust  discrimination  and  excessive  charges, 
and  is,  therefore,  valid.  Of  course  if  the  regulation  sought  to  be 
enforced  is  valid,  its  enforcement  by  mandamus  cannot  be  construed 
as  a  taking  or  appropriation  of  property  under  the  power  of  eminent 
domain,  or  as  a  deprivation  of  property  without  due  process  of  law. 


TRANSPORTATION  CO.  v.  STANDARD  OIL  CO. 

Court  of  Appeals,  West  Virginia,  1901. 

[40  S.  E.  Rep.  591.2] 

Brannon,  J.  The  West  Virginia  Transportation  Companj'  brought 
trespass  on  the  case  in  Wood  Count}'  against  the  Standard  Oil  Company 
and  the  Eureka  Pipe  Line  Company,  all  corporations,  and  upon  demurrer 
to  the  declaration  judgment  was  rendered  for  the  defendants.  The  first 
count  of  the  declaration  charges  that  the  plaintiff  was  engaged  in  the 
business  of  transporting  petroleum  oils  by  means  of  pipe  lines  and  tank 
cars  from  Volcano  and  vicinit}*  to  Parkersburg,  and  in  storing  oil,  and 
had  expended  $300,000  in  acquiring  land,  rights  of  way,  lines  of  tubing, 
and  other  things  necessary  in  its  business,  and  had  built  up  a  large  and 
lucrative  business,  and  that  the  defendants  maliciously  and  wickedly 
contriving  and  intending  to  injure  the  plaintiff  and  ruin  its  business, 
and  render  its  plant  and  property  worthless,  and  deprive  it  of  all  its 


TRANSPORTATION  CO.   V.   STANDARD   OIL  CO.  71 

business,  did  confederate  and  conspire  together  and  with  the  West  Vir- 
ginia Oil  Company,  another  corporation,  and  with  C.  H.  Shattuck  and 
other  persons  unknown  to  the  plaintiff,  to  prevent  all  persons  produc- 
ing, refining,  selling,  or  transporting  oils,  and  particularly  to  prevent 
the  plaintiff  from  transporting  oils  through  its  pipe  lines  and  by  means 
of  its  tank  cars,  and  from  storing  oil  in  its  storage  tanks,  and  from 
executing  any  lawful  trade  in  connection  therewith. 

At  first  blush  this  conduct  might  appear  wrong;  but  a  second  thought 
again  presents  the  question  whether  the  defendants  in  this  did  any- 
thing unlawful.  The  defendant  companies  were  all  in  common  in- 
terest. Could  they  not  unite  to  further  their  interests?  Could  not 
the  Standard  Oil  Company  buy  from  whom  it  chose?  And  within  the 
pale  of  this  right  could  it  not  impose  such  conditions  as  it  chose?  Can- 
not the  village  merchant  say  to  the  farmer,  "  I  will  not  buy  your  eggs 
unless  you  buy  my  calico"?  Cannot  the  big  mill  owner  refuse  to  buy 
wheat  from  those  who  do  not  ship  it  over  a  railroad  or  steamboat  line 
owned  by  him?  Cannot  the  mill  owner  refuse  to  lease  his  farm  to  those 
who  do  not  sell  products  to  his  mill?  He  may  be  exacting  and  oppres- 
sive, but  can  other  mill  owners  sue  him  for  this?  Is  this  right  not  a 
part  and  parcel  of  his  business  right?  It  is  the  right,  even  when  there 
is  no  common  ownership,  as  there  is  in  this  case,  of  one  man  to  buy  of 
whom  he  chooses;  and  he  can  impose  arbitrary,  hard  conditions,  if  the 
other  party  chooses  to  accede  to  them.  So  it  is  the  clear  right  of  the 
other  party  to  sell  to  whom  he  chooses,  and  he  having  this  right,  how 
does  the  other  party  do  a  wrong  in  purchasing  from  him?  The  right 
of  the  one  carries  with  it  the  right  of  the  other.  These  producers  of 
oil  had  the  right  to  sell  to  whom  they  chose,  to  ship  their  oil  by  what 
pipe  line  they  chose,  and  they  had  the  right  to  submit  to  the  terms  of 
the  Standard  Oil  Company,  and  in  view  of  this  right  the  company 
could  buy  from  whom  it  chose,  and  on  such  terms  as  it  chose;  for  the 
right  of  the  former  would  bear  no  fruitage,  would  be  futile,  without  the 
corresponding  right  of  contract  in  the  company.  Observe  the  question 
here  is  not  their  own  interests  in  lawful  competition  with  others.  If 
they  possessed  the  lawful  right  above  stated,  what  matters  it  that  they 
did  have  the  intent  to  cut  down  the  business  of  others,  or  that  they  did 
cut  it  down  and  injure  others,  though  they  did  this  that  they  might 
themselves  fatten?  So  far  this  first  count  charges  only  the  exercise 
by  the  defendants  of  a  right  of  constitutional  liberty,  accorded  alike 
to  all,  —  simply  the  right  of  self-advancement  in  legitimate  business, 
self-preservation,  we  may  say. 


72  HURLEY,   ADMINISTRATOK  V.    EDDINGFIELD. 


HURLEY,  ADMINISTRATOR  v.  EDDINGFIELD. 
Supreme  Codet  of  Indiana,  1901. 

[156  Ind.  415.] 

Baker,  J.  Appellant  sued  appellee  for  $10,000  damages  for  wrong- 
fully causing  the  death  of  his  intestate.  The  court  sustained  appellee's 
deraurrrer  to  the  complaint ;  and  this  ruling  is  assigned  as  errror. 

The  material  facts  alleged  may  be  summarized  thus :  At  and  for 
years  before  decedent's  death  appellee  was  a  practicing  phj'sician  at 
Mace  in  Montgomery  county,  duly  licensed  under  the  laws  of  the  State. 
He  held  himself  out  to  the  public  as  a  general  practitioner  of  medicine. 
He  had  been  decedent's  family  physician.  Decedent  became  danger- 
ously ill  and  sent  for  appellee.  The  messenger  informed  appellee  of 
decedent's  violent  sickness,  tendered  him  his  fees  for  his  services,  and 
stated  to  him  that  no  other  physician  was  procurable  in  time  and  that 
decedent  relied  on  him  for  attention.  No  other  physician  was  procur- 
able in  time  to  be  of  any  use,  and  decedent  did  rely  on  appellee  for 
medical  assistance.  Without  any  reason  whatever,  appellee  refused  to 
render  aid  to  decedent.  No  other  patients  were  requiring  appellee's 
immediate  service,  and  he  could  have  gone  to  the  relief  of  decedent, 
if  he  had  been  willing  to  do  so.  Death  ensued,  without  decedent's 
fault,  and  wholly  from  appellee's  wrongful  act. 

The  alleged  wrongful  act  was  appellee's  refusal  to  enter  into  a  con- 
tract of  employment.  Counsel  do  not  contend  that,  before  the  enact- 
ment of  the  law  regulating  the  practice  of  medicine,  physicians  were 
bound  to  render  professional  service  to  every  one  who  applied.  Whar- 
ton on  Neg.,  §731.  The  act  regulating  the  practice  of  medicine  pro- 
vides for  a  board  of  examiners,  standards  of  qualification,  examina- 
tions, licenses  to  those  found  qualified,  and  penalties  for  practicing 
without  license.  Acts  1897,  p.  255;  Acts  1899,  p.  247.  The  act  is 
a  preventive,  not  a  compulsive,  measure.  In  obtaining  the  State's 
license  (permission)  to  practice  medicine,  the  State  does  not  require, 
and  the  licensee  does  not  engage,  that  he  will  practice  at  all  or  on 
other  terms  than  he  may  choose  to  accept.  Counsel's  analogies,  drawn 
from  the  obligations  to  the  public  on  the  part  of  inn-keepers,  common 
carriers,  and  the  like,  are  beside  the  mark. 

Judgment  affirmed. 


GERMAN  ALLIANCE  INS.   CO.   V.  KANSAS   SUPT.   OF  INSURANCE.      73 


GERMAN  ALLIANCE  INSURANCE  COMPANY  v.  KANSAS 
SUPERINTENDENT  OF  INSURANCE. 

Supreme  Court  of  the  United  States,  1914. 

[233  U.  S.  389.1] 

Bill  in  equity  to  restrain  the  enforcement  of  the  provisions  of  an 
act  of  the  State  of  Kansas  entitled,  "  An  Act  relating  to  Fire  Insur- 
ance, and  to  provide  for  the  Regulation  and  Control  of  Rates  of 
Premium  thereon,  and  to  prevent  Discriminations  therein."  Ch.  152, 
Session  Laws  of  1909. 

Mr.  Justice  McKenna  deUvered  the  opinion  of  the  court. 

The  restrictions  upon  the  legislative  power  which  complainant 
urges  we  have  discussed,  or  rather  the  considerations  which  take,  it  is 
contended,  the  business  of  insiu-ance  outside  of  the  sphere  of  the 
power.  To  the  contention  that  the  business  is  private  we  have  op- 
posed the  conception  of  the  public  interest.  We  have  sho-^VTi  that  the 
business  of  insurance  has  very  definite  characteristics,  with  a  reach  of 
influence  and  consequence  beyond  and  different  from  that  of  the 
ordinary  businesses  of  the  conunercial  world,  to  pursue  which  a  greater 
liberty  may  be  asserted.  The  transactions  of  the  latter  are  indepen- 
dent and  individual,  terminating  in  their  effect  with  the  instances. 
The  contracts  of  insurance  may  be  said  to  be  interdependent.  They 
cannot  be  regarded  singly,  or  isolatedly,  and  the  effect  of  their  rela- 
tion is  to  create  a  fund  of  assiwance  and  credit,  the  companies  becom- 
ing the  depositories  of  the  money  of  the  insured,  possessing  great 
power  thereby  and  charged  with  great  responsibility.  How  necessary 
their  solvency  is,  is  manifest.  On  the  other  hand  to  the  insured,  in- 
surance is  an  asset,  a  basis  of  credit.  It  is  practically  a  necessity  to 
business  activity  and  enterprise.  It  is,  therefore,  essentially  different 
from  ordinary  commercial  transactions,  and,  as  we  have  seen,  accord- 
ing to  the  sense  of  the  world  from  the  earliest  times  —  certainly  the 
sense  of  the  modem  world  —  is  of  the  greatest  public  concern.  It  is, 
therefore,  within  the  principle  we  have  announced.  The  principle  we 
apply  is  definite  and  old  and  has,  as  we  have  pointed  out,  illustrating 
examples.  And  both  by  the  expression  of  the  principle  and  the  cita- 
tion of  the  examples  we  have  tried  to  confine  our  decision  to  the 
regulation  of  the  business  of  insurance,  it  having  become  "clothed 
with  a  public  interest,"  and  therefore  subject  "  to  be  controlled  by  the 
public  for  the  common  good." 

1  Three  Justices  concurred  with  the  opinion  of  the  court  printed  in  part  above; 
Mr.  Justice  Lamab  wrote  a  dissenting  opinion  in  which  two  Justices  concurred. 
—  Ed. 


74  THE   PIPE   LINE   CASES. 

THE  PIPE  LINE  CASES. 
SupRKME  Court  of  the  United  States,  1914. 

[234  V.  S.  548.1] 

The  Chief  Justice  concurring. 

Agreeing  in  every  particular  with  the  conclusions  of  the  court  and 
with  its  reasoning  except  as  to  one  special  subject,  my  concurrence  as 
to  that  matter  because  of  its  importance  is  separately  stated.  The 
matter  to  which  I  refer  is  the  exclusion  of  the  Uncle  Sara  Oil  Com- 
pany from  the  operation  of  the  act.  The  view  which  leads  the  court 
to  exclude  it  is  that  the  company  was  not  engaged  in  transportation 
under  the  statute,  a  conclusion  to  which  I  do  not  assent.  The  facts 
are  these:  That  company  owns  wells  in  one  State  from  which  it  has 
pipe  lines  to  its  refinery  in  another  State,  and  pumps  its  own  oil 
through  such  pif)e  lines  to  its  refinery  and  the  product  of  course  when 
reduced  at  the  refinery  passes  into  the  markets  of  consumption.  It 
seems  to  me  that  the  business  thus  carried  on  is  transportation  in  in- 
terstate commerce  within  the  statute.  But  despite  this  I  think  the 
company  is  not  embraced  by  the  statute  because  it  would  be  impossi- 
ble to  make  the  statute  applicable  to  it  without  violating  the  due 
process  clause  of  the  Fifth  Amendment,  since  to  apply  it  would  neces- 
sarily amount  to  a  taking  of  the  property  of  the  company  without 
compensation.  It  is  shown  beyond  question  that  the  company  buys 
no  oil  and  by  the  methods  which  have  been  mentioned  simply  carries 
its  own  product  to  its  own  refinery;  in  other  words,  it  is  engaged  in  a 
purely  private  business.  Under  these  conditions  in  my  opinion  there 
is  no  power  under  the  Constitution  without  the  exercise  of  the  right 
of  eminent  domain  to  convert  without  its  consent  the  private  business 
of  the  company  into  a  public  one. 

Of  course  this  view  has  no  application  to  the  other  companies  which 
the  court  holds  are  subject  to  the  act  because  as  pointed  out  the  prin- 
cipal ones  were  chartered  as  common  carriers  and  they  all  either 
directly  or  as  a  necessary  result  of  their  association  were  engaged  in 
buying  oil  and  shipping  it  through  their  pipes;  in  other  words,  were 
doing  in  reality  a  common  carrier  business,  disguised,  it  may  be,  in 
form,  but  not  changed  in  substance.  Under  these  conditions  I  do  not 
see  how  it  would  be  p)ossible  to  avoid  the  conclusion  which  the  court 
has  reached  without  declaring  that  the  shadow  and  not  the  substance 
was  the  criterion  to  be  resorted  to  for  the  purpose  of  determining  the 
validity  of  the  exercise  of  legislative  power. 

*  The  opinion  of  Mr.  Justice  Holmes  for  the  court  and  that  of  Mr.  Justice 
McKknna  dissenting  are  omitted.  —  £o. 


GISBOURN   V.   HURST.  75 


CHAPTER   II. 

EXTENT   OF  PUBLIC   PROFESSION. 


GISBOURN  V.  HURST. 
Common  Bench,  1710. 

[1  Salk.  249.] 

In  trover  upon  a  special  verdict  the  case  was,  the  goods  in  the  decla- 
ration were  the  plaintiffs,  and  by  him  delivered  in  London  to  one  Rich- 
ardson, to  carry  down  to  Birmingham.  This  Richardson  was  not  a 
common  carrier,,  but  for  some  small  time  last  past  brought  cheese  to 
London,  and  in  his  return  took  such  goods  as  he  could  carry  back  in 
his  wagon  into  the  country  for  a  reasonable  price.  When  he  returned 
home,  he  put  his  wagon  with  the  cheese  into  the  barn,  where  it  con- 
tinued two  nights  and  a  day,  and  then  the  landlord  came  and  distrained 
the  cheese  for  rent  due  for  the  house,  which  was  not  an  inn,  but  a  pri- 
vate house;  and  it  was  agreed  per  Cur.,  that  goods  delivered  to  any 
person  exercising  a  public  trade  or  employment  to  be  carried,  wrought 
or  managed  in  the  way  of  his  trade  or  employ,  are  for  that  time  under 
a  legal  protection,  and  privileged  from  distress  for  rent ;  but  this 
being  a  private  undertaking  required  a  farther  consideration,  and  it 
was  resolved,  that  an}'  man  undertaking  for  hire  to  carrj'  the  goods  of 
all  persons  indifferentl}',  as  in  this  case,  is,  as  to  this  privilege,  a  com- 
mon carrier ;  for  the  law  has  given  the  privilege  in  respect  of  the 
trader,  and  not  in  respect  of  the  carrier,  and  the  case  in  Cro.  El.  596 
is  stronger.  Two  tradesmen  brought  their  wool  to  a  neighbor's  beam, 
which  he  kept  for  his  private  use,  and  it  was  held  that  could  not  be 
distrained.^ 

^  Vide  Francis  v.  "Wyatt,  3  Bur.  1489,  1  Bl.  483,  in  which  it  was  determined,  that 
a  carriage  standing  at  livery  is  not  exempt  from  distress.  In  the  former  report  the 
general  doctrine  upon  the  subject  is  very  fully  discussed. 


76  GORDON  V.   HUTCHINSON. 


GORDON  V.  HUTCHINSON. 
Supreme  Coubt  of  Pennsylvania,  1841. 

[1    W.  ^  S.  285.] 

Error  to  the  Common  Pleas  of  Centre  County. 

This  was  an  action  on  the  case  by  James  B.  Hutchinson  against 
James  Gordon.    The  defendant  pleaded  non  assumpsit. 

The  facts  were  that  the  defendant,  being  a  farmer,  applied  at  the 
store  of  the  plaintiff  for  the  hauling  of  goods  from  Lewistown  to  Belle- 
fonte,  upon  his  return  from  the  former  place,  where  he  was  going  with 
a  load  of  iron.  He  received  an  order  and  loaded  the  goods.  On  the 
waj'  the  head  came  out  of  a  hogshead  of  molasses,  and  it  was  wholly 
lost.  In  this  action  the  plaintiff  claimed  to  recover  the  price  of  it 
There  was  much  proof  on  the  subject  of  the  occasion  of  the  loss : 
whether  it  was  in  consequence  of  expansion  of  the  molasses  from  heat, 
or  of  negligence  on  the  part  of  the  wagoner,  of  which  there  was  strong 
evidence. 

The  defendant  took  the  ground  that  he  was  not  subject  to  the  re- 
sponsibilities of  a  common  carrier,  but  only  answerable  for  negligence, 
inasmuch  as  he  was  only  employed  occasionally'  to  carry  for  hire.  But 
the  court  below  (Woodward,  President)  instructed  the  jur}',  that  the 
defendant  was  answerable  upon  the  principles  which  govern  the  liabili- 
ties of  a  common  carrier. 

Blanchard,  for  plaintiff  in  error,  argued  the  same  point  here,  and 
cited  in  support  of  it  2  Kent's  Com.  597  j  Story  on  Bail.  298;  2  Lord 
Raym.  909;  2  Marsh,  293;  Jones  on  Bail.  306  ;  5  Rawle,  188  ;  1  Wend. 
272;  Leigh  N.  P.  507;  2  Salk.  249;  2  Bos.  &  Pul.  417 ;  4  Taunt 
787. 

Hale,  for  defendant  in  error,  cited  4  N.  H.  306;  Bui.  N.  P.  7; 
1  Salk.  282  ;  1  Wils.  281;  Story  on  Bail.  325  ;  2  Watts,  443. 

The  opinion  of  the  court  was  delivered  b}- 

Gibson,  C.  J.  The  best  definition  of  a  common  carrier  in  its  appli- 
cation to  the  business  of  this  countr}-,  is  that  which  Mr.  Jeremy  (Law 
of  Carriers,  4)  has  taken  from  Gisbourn  v.  Hurst,  1  Salk.  249,  which 
was  the  case  of  one  who  was  at  first  not  thought  to  be  a  common  car- 
rier only  because  he  had,  for  some  small  time  before,  brought  cheese 
to  London,  and  taken  such  goods  as  he  could  get  to  carry  back  into 
the  country  at  a  reasonable  price ;  but  the  goods  having  been  dis- 
trained for  the  rent  of  a  barn  into  which  he  had  put  his  wagon  for  safe 
keeping,  it  was  finally  resolved  that  any  man  undertaking  to  carry  the 
goods  of  all  persons  indifferently,  is,  as  to  exemption  from  distress,  a 
common  carrier.  Mr.  Justice  Story  has  cited  this  case  (Commentaries 
on  Bailm.  322)  to  prove  that  a  common  carrier  is  one  who  holds  him- 
self out  as  read}'  to  engage  in  the  transportation  of  goods  for  hire  as  a 
business,  and  not  as  a  casual  occupation  pro  hac  vice.     My  conclusion 


GORDON   V.   HUTCHINSON.  77 

from  it  is  different.  I  take  it  a  wagoner  who  carries  goods  for  hire  is  a 
common  carrier,  whether  transportation  be  his  principal  and  direct 
business,  or  an  occasional  and  incidental  employment.  It  is  true  the 
court  went  no  further  than  to  say  the  wagoner  was  a  common  carrier 
as  to  the  privilege  of  exemption  from  distress ;  but  his  contract  was 
held  not  to  be  a  private  undertaking  as  the  court  was  at  first  inclined 
to  consider  it,  but  a  public  engagement,  by  reason  of  his  readiness  to 
carry  for  any  one  who  would  employ  him,  without  regard  to  his  other 
avocations,  and  he  would  consequently  not  only  be  entitled  to  the  privi- 
leges, but  be  subject  to  the  responsibilities  of  a  common  carrier :  in- 
deed they  are  correlative,  and  there  is  no  reason  why  he  should  enjoy 
the  one  without  being  burdened  with  the  other.  Chancellor  Kent 
(2  Commentaries,  597)  states  the  law  on  the  authority  of  Robinson  v. 
Dunmore,  2  Bos.  &  Pul.  416,  to  be  that  a  carrier  for  hire  in  a  particu- 
lar case,  not  exercising  the  business  of  a  common  carrier,  is  answerable 
onh'  for  ordinary  neglect,  unless  he  assume  the  risk  of  a  common  car- 
rier by  express  contract ;  and  Mr.  Justice  Story  (Com.  on  Bail.  298)  as 
well  as  the  learned  annotator  on  Sir  William  Jones's  Essaj'  (Law  of 
Bailm.  103  d,  note  3)  does  the  same  on  the  authoritj'  of  the  same  case. 
There,  however,  the  defendant  was  held  liable  on  a  special  contract  of 
warrant3%  that  the  goods  should  go  safe  ;  and  it  was  therefore  not  ma- 
terial whether  he  was  a  general  carrier  or  not.  The  judges,  indeed, 
said  that  he  was  not  a  common  cai'rier,  but  one  who  had  put  himself 
in  the  case  of  a  common  carrier  by  his  agreement ;  yet  even  a  common 
carrier  may  restrict  his  responsibility  by  a  special  acceptance  of  the 
goods,  and  may  also  make  himself  answerable  by  a  special  agreement 
as  well  as  on  the  custom.  The  question  of  carrier  or  not,  therefore, 
did  not  necessarily  enter  into  the  inquiry,  and  we  cannot  suppose  the 
judges  gave  it  their  principal  attention. 

But  rules  which  have  received  their  form  from  the  business  of  a  peo- 
ple whose  occupations  are  definite,  regular,  and  fixed,  must  be  applied 
with  much  caution  and  no  little  qualification  to  the  business  of  a  peo- 
ple whose  occupations  are  vague,  desultory,  and  irregular.  In^ng- 
laud,  one  who  holds  himself  out  as  a  general  carrier  is  bound  to  take 
employment  at  the  current  price  ;  but  it  will  not  be  thought  that  he  is 
bound  to  do  so  here.  Nothing  was  more  common  formerly,  than  for 
the  wagoners  to  lie  by  in  Philadelphia  for  a  rise  of  wages.  In  Eng- 
land the  obligation  to  carry  at  request  upon  the  carrier's  particular 
route,  is  the  criterion  of  the  profession,  but  it  is  certainly  not  so  with 
us.  In  Pennsylvania,  we  had  no  carriers  exclusively  between  particu- 
lar places,  before  the  establishment  of  our  public  lines  of  transporta- 
tion; and  according  to  the  English  principle  we  could  have  had  no 
common  carriers,  for  it  was  not  pretended  that  a  wagoner  could  be 
compelled  to  load  for  any  part  of  the  continent.  But  the  policy  of 
holding  him  answerable  as  an  insurer  was  more  obviously  dictated  by  the 
solitary  and  mountainous  regions  through  which  his  course  for  the  most 
part  lay,  than  it  is  by  the  frequented  thoroughfares  of  England.     But  the 


78  ALLEN  r.   SACK  RIDER. 

Pennsylvania  wagoner  was  not  always  such  even  by  profession.  No 
inconsiderable  part  of  the  transportation  was  done  b}-  the  farmers  of 
the  interior,  who  took  tlieir  produce  to  Piiiladelphia,  an«l  procured  re- 
turn loads  for  the  retail  merchants  of  the  neighboring  towns  ;  and 
many  of  them  passed  b\'  tlieir  homes  with  loads  to  Pittsburg  or  Wheel- 
ing, tlie  principal  points  of  embarkation  on  the  Ohio.  But  no  one  sup- 
posed tlio}'  were  not  responsible  as  common  carriers  ;  and  they  always 
compensated  losses  as  such.  The}-  presented  themselves  as  applicants 
for  employment  to  those  who  could  give  it ;  and  were  not  distinguish- 
able in  their  appearance,  or  in  the  equipment  of  their  teams  from 
carriors  by  profession.  I  can  readily  understand  whv  a  carpenter,  en- 
couraged by  an  emplo^'cr  to  undertake  the  job  of  a  cabinetmaker,  shall 
not  be  bound  to  bring  the  skill  of  a  workman  to  the  execution  of  it ;  or 
why  a  farmer,  taking  his  horses  from  the  plough  to  turn  teamster  at  the 
solicitation  of  his  neighbor,  shall  be  answerable  for  nothing  less  than 
good  faith ;  but  I  am  unable  to  understand  why  a  wagoner  soliciting 
the  employment  of  a  common  carrier,  shall  be  prevented  by  the  nature 
of  an}'  other  emplojment  he  may  sometimes  follow,  from  contracting 
the  responsibility  of  one.  What  has  a  merchant  to  do  with  the  private 
business  of  those  who  publicly  solicit  employment  from  him?  They 
offer  themselves  to  him  as  competent  to  perform  the  service  required, 
and  in  the  absence  of  express  reservation,  they  contract  to  perform  it 
on  the  usual  terms,  and  under  the  usual  responsibilit}'.  Now,  what  is 
the  case  here?  The  defendant  is  a  farmer,  but  has  occasionally  done 
jobs  as  a  carrier.  That,  however,  is  immaterial.  He  applied  for  the 
transportation  of  these  goods  as  a  matter  of  business,  and  consequent!}' 
on  the  usual  conditions.  His  agency  was  not  sought  in  consequence 
of  a  special  confidence  reposed  in  him  —  there  was  nothing  special  in 
the  case  —  on  the  contrary,  the  employment  was  sought  by  himself, 
and  there  is  nothing  to  show  that  it  was  given  on  terms  of  diminished 
responsibility.  There  was  evidence  of  negligence  before  the  jury ; 
but  independent  of  that,  we  are  of  opinion  that  he  is  liable  as  an 
insurer.  Judgment  affirmed.^ 


ALLEN  V.  SACKRIDER. 
Court  of  Appeals,  New  York,  1867. 

[37  N.  Y.  341.] 

Parker,  J.  The  action  was  brought  against  the  defendants  to 
charge  them,  as  common  carriers,  with  damage  to  a  quantity  of  grain 
shipped  by  the  plaintiffs  in  the  sloop  of  the  defendants,  to  be  trans- 

1  Compare:  Fish  v.  Chapman,  2  Ga.  349;  Parmalee  v.  Lourtz,  74  IlL  116;  Robert- 
ion  r.  Keooedj,  2  Dana,  430 ;  Hauison  i;.  Roy,  39  Mus.  396  ;  Sanners  v.  Stewart,  20 
Oh.  St.  69 ;  Chevallier  v.  Straham,  2  Tex.  116.  —  Eo. 


ALLEN   V.   SACKKIDER.  79 

ported  from  Trenton,  in  the  province  of  Canada,  to  Ogdensburgh,  in 
this  State,  which  accrued  from  the  wetting  of  the  grain  in  a  storm. 

The  case  was  referred  to  a  referee,  who  found  as  follows:  "The 
plaintiffs,  in  the  fall  of  1859,  were  partners,  doing  business  at  Ogdens- 
burgh. The  defendants  were  the  owners  of  the  sloop  "  Creole,"  of  which 
Farnham  was  master.  In  the  fall  of  1859  the  plaintiffs  applied  to  the 
defendants  to  bring  a  load  of  grain  from  the  ba}-  of  Quinte  to  Ogdens- 
burgh. The  master  stated  that  he  was  a  stranger  to  the  bay,  and  did 
not  know  whether  his  sloop  had  capacitj'  to  go  there.  Being  assured 
by  the  plaintiffs  that  she  had,  he  engaged  for  the  trip  at  three  cents  per 
bushel,  and  performed  it  with  safet}'.  In  November,  1859,  plaintiffs 
again  applied  to  defendants  to  make  another  similar  trip  for  grain,  and 
it  was  agreed  at  one  hundred  dollars  for  the  trip.  The  vessel  pro- 
ceeded to  the  baj',  took  in  a  load  of  grain,  and  on  her  retuin  was 
driven  on  shore,  and  the  cargo  injured  to  the  amount  of  $1,346.34; 
that  the  injury-  did  not  result  from  the  want  of  ordinary  care,  skill,  or 
foresight,  nor  was  it  the  result  of  inevitable  accident,  or  what,  in  law, 
is  termed  the  act  of  God.  From  these  facts,  m}"  conclusions  of  law 
are,  that  the  defendants  were  special  carriers,  and  only  liable  as  such, 
and  not  as  common  carriers,  and  that  the  proof  does  not  establish  such 
facts  as  would  make  the  defendants  liable  as  special  carriers;  and, 
therefore,  the  plaintiffs  have  no  cause  of  action  against  them." 

The  only  question  in  the  case  is,  were  the  defendants  common  car- 
riers ?  The  facts  found  b}-  the  referee  do  not,  I  think,  make  the  defend- 
ants common  carriers.  The}-  owned  a  sloop;  but  it  does  not  appear 
that  it  was  ever  offered  to  the  public  or  to  individuals  for  use,  or  ever 
put  to  an}'  use,  except  in  the  two  trips  which  it  made  for  the  plaintiffs, 
at  their  special  request.  Nor  does  it  appear  that  the  defendants  were 
engaged  in  the  business  of  carrying  goods,  or  that  they  held  themselves 
out  to  the  world  as  carriers,  or  had  ever  offered  their  services  as  such. 
This  casual  use  of  their  sloop  in  transporting  plaintiffs'  property  falls 
short  of  proof  sufflcient  to  show  them  common  carriers. 

A  common  carrier  was  defined,  in  Gisbourn  v.  Hurst,  1  Salk.  249,  to 
be,  "  an}-  man  undertaking,  for  hire,  to  carry  the  goods  of  all  persons 
indifferently;"  and  in  Dwight  v.  Brewster,  1  Pick.  50,  to  be,  "one  who 
undertakes,  for  hire,  to  transport  the  goods  of  such  as  choose  to  emplo}' 
him,  from  place  to  place."  In  Orange  Bank  v.  Brown,  3  Wend.  161, 
Chief  Justice  Savage  said:  " Ever}'  person  who  undertakes  to  carry, 
for  a  compensation,  the  goods  of  all  persons  indifferently,  is,  as  to  the 
liability  impX)sed,  to  be  considered  a  common  carrier.  The  distinction 
between  a  common  carrier  and  a  private  or  special  carrier  is,  that  the 
former  holds  himself  out  in  common,  that  is,  to  all  persons  who  choose 
to  employ  him,  as  ready  to  carry  for  hire ;  while  the  latter  agrees,  in 
some  special  case,  with  some  private  individual,  to  carry  for  hire." 
(Story  on  Contracts,  §  752,  a.)  The  employment  of  a  common  carrier 
is  a  public  one,  and  he  assumes  a  public  duty,  and  is  bound  to  receive 
and  carr}'  the  goods  of  any  one  who  offers.     "On  the  whole,"  s&ya 


80  INGATE   V.   CHRISTIE. 

Prof.  Parsons,  "it  seems  to  be  clear  that  no  one  can  be  considered  as 
a  common  carrier,  unless  he  has,  in  some  way,  held  himself  out  to 
the  public  as  a  carrier,  in  such  manner  as  to  render  him  liable  to  an 
action  if  he  should  refuse  to  carrj-  for  an}-  one  who  wished  to  emplo}' 
him."     (2  Pars,  on  Cont.  [5th  ed.]  166,  note.) 

The  learned  counsel  for  the  appellant  in  effect  recognizes  the  necessity 
of  the  carrier  holding  himself  out  to  the  world  as  such,  in  order  to  in- 
vest him  with  the  character  and  responsibilities  of  a  common  carrier ; 
and,  to  meet  that  necessity',  says  :  "The  'Creole'  was  a  freight  vessel, 
rigged  and  manned  suitably  for  carrying  freight  from  port  to  port ;  her 
appearance  in  the  harbor  of  Ogdensburgh,  waiting  for  business,  was  an 
emphatic  advertisement  that  she  sought  employment."  These  facts  do 
not  appear  in  the  findings  of  the  referee,  and,  therefore,  cannot,  if  they 
existed,  help  the  appellants  upon  this  appeal. 

It  is  not  claimed  that  the  defendants  are  liable,  unless  as  common 
carriers.  Very  clearly,  they  were  not  common  carriers  ;  and  the  judg- 
ment should,  therefore,  be  affirmed. 

All  the  judges  concurring.  Judgment  affirmed.^ 


INGATE  V.  CHRISTIE. 
Queen's  Bench,  1850. 

[3   Car.  ^  K.  61.] 

Assumpsit.  The  declaration  stated,  that  the  defendant  agreed  to 
carr}'  100  cases  of  figs  from  a  wharf  to  a  ship,  and  that  b}'  the  negli- 
gence of  the  defendant's  servants  the  figs  were  lost.  Plea:  non 
assumpsit. 

It  was  proved  that,  on  the  14th  of  February,  1850,  the  defendant 
was  employed  by  the  plaintiffs,  who  are  merchants,  to  take  100  cases 
of  figs  in  his  lighter  from  Mills'  Wharf,  in  Thames  Street,  to  the  "  Mag- 
net" steamer,  which  lay  in  the  River  Thames,  and  that  as  the  figs  were 
on  board  the  lighter,  which  was  proceeding  with  them  to  tbe  "Mag- 
net," the  lighter  was  run  down  by  the  "  Menai"  steamer  and  the  figs 
all  lost  It  was  proved  that  the  defendant  had  a  counting-house  with 
his  name  and  the  word  "lighterman"  on  the  doorposts  of  it,  and  that 
he  carried  goods  in  his  lighters  from  the  wharves  to  the  ships  for  an}-- 
body  who  employed  him,  and  that  the  defendant  was  a  lighterman  and 
not  a  wharfinger. 

Aldekson,  B.  Everybody  who  undertakes  to  carry  for  any  one  who 
asks  him,  is  a  common  carrier.  The  criterion  is,  whether  he  carries 
for  particular  persons  only,  or  whether  he  carries  for  every  one.   If  a 

1  Compare:     Bell  v.  Pidgeon,  5  Fed.  634;   Crosby  v.  Fitch,  12  Conn.  410;  Fish  v.  ' 
Gark,  49  N.  Y.  122;  Pennewell  v.  Cullen,  5  Ilarr.  238;  Moss  v.  Bettes,  4  Heisk.  661; 
Spencer  v.  Daggett,  2  Vt.  92.  —  Ed. 


ATLANTIC  CITY  V.   FONSLER.  81 

man  holds  himself  out  to  do  it  for  every  one  who  asks  him,  he  is  a  com- 
mon carrier ;  but  if  he  does  not  do  it  for  every  one,  but  carries  for  you 
and  me  only,  that  is  matter  of  special  contract.  Here  we  have  a  per- 
son with  a  counting-house,  "  lighterman  "  painted  at  his  door,  and  he 
offers  to  carry  for  every  one. 


ATLANTIC   CITY  v.  FONSLER. 
Supreme  Court  of  New  Jersey,  1903. 

[56^^.119.1] 

Garretson,  J.  The  power  of  Atlantic  City  to  pass  ordinances  reg- 
ulating the  business  of  driving  omnibuses,  automobiles,  or  locomobiles, 
and  fixing  the  fares  to  be  charged,  seems  to  be  abundantly  conferred 
by  various  statutes,  viz. :  By  a  supplement  to  the  charter  of  Atlantic 
City,  approved  March  13,  1896  ;  by  another  supplement  approved 
March  22,  1871 ;  and  a  general  act  applicable  to  all  cities  approved 
May  16,  1894,  Gen.  St.  p.  2236,  §  532;  and  we  are  unable  to  see  that 
an}'  of  the  regulations  imposed  by  this  ordinance  are  unreasonable. 
There  is  nothing  unreasonable  in  requiring  the  driver  of  an  omnibus, 
permitted  by  the  city's  license  to  run  his  vehicle  on  the  public  street, 
to  carry  all  persons  applying  to  him  for  passage  and  legally  tendering 
the  fare,  as  common  carriers  are  required  to  do ;  and  a  further  regula- 
tion, such  as  is  made  in  this  ordinance,  which  provides  for  a  convenient 
notification  to  intending  passengers  that  the  vehicle  is  already  in  actual 
use,  which  provision  seems  to  be  as  well  for  the  convenience  of  the 
driver,  has  nothing  unreasonable  in  it. 

The  judgment  should  be  affirmed.* 

1  The  statement  of  the  ordinance  in  question  requiring  all  licensed  hackmen  to 
accept  passengers  unless  the  sign  "  Engaged  "  was  displayed  is  omitted  from  the  opia< 
ion.  —  Ed. 

a  Compare :  Atlantic  City  v.  Jehn,  69  N.  J.  L.  233.  —  Ed. 


82  GIBSON   V.   SILVA. 


GIBSON  V.  SILVA. 
Supreme  Court  of  Ceylon,  1848. 

[Rama  Nathan,  105.] 

Oliphant,  C.  J.  The  judgment  and  sentence  of  the  police  court 
are  set  aside.  The  question  in  this  case  is,  did  the  defendant  use  a 
carriage  for  the  conveyance  for  hire  as  a  public  business  of  any  goods, 
or  did  he  use  a  carriage  for  the  conveyance  for  hire,  j)ro  hac  vice,  of 
any  goods.  If  "  as  a  public  business  "  the  defendant  ought  to  have  had 
a  license;  if  pro  hac  vice  none  was  required.  A  certain  obscurit}"  may 
have  crept  into  the  ordinance  by  reason  of  the  words  "  as  a  public  bus- 
iness "  being  only  understood  and  not  expressed  after  the  words  **  con- 
veyance for  hire  "  in  the  3rd  line  of  the  6th  section.  If  these  words  are 
not  to  be  supplied  in  the  6th  section,  then  the  intention  of  the  ordi- 
nance, as  declared  in  the  2nd  section,  is  completely  altered,  and 
every  one  hiring  out  his  cart  for  a  job,  as  to  bring  a  load  of  bricks  or 
remove  earth  from  the  foundation  of  a  house,  would  be  obliged  to  have 
a  license,  whereas  the  words  used  in  the  2nd  section  are  those  consti- 
tuting the  definition  of  a  common  carrier  in  the  English  law.  The 
defendant  was  a  contractor  with  the  superintendent  of  police  to  do  a 
particular  job,  and  he  was  not  at  the  service  of  every  individual  who 
pleased  to  call  upon  him  to  carry  for  them,  which  is  the  case  under 
certain  restrictions  with  those  who  convey  for  hire  as  a  public  business, 
they  being  in  fact  carriers,  and  incurring  the  liabilities  and  responsi- 
bilities of  that  calling.  Upon  this  ground  the  case  is  decided,  but 
surely  it  is  ver}*  questionable  whether  goods  were  carried.  Can  rubbish 
removed,  to  be  shut  out  of  the  wa}'^  or  burnt,  be  called  goods  ?  Can  a 
person  carrying  away  a  nuisance  for  which  he  receives  a  remuneration 
for  his  trouble  be  called  a  carrier?  The  court  inclines  to  think  these 
questions  must  be  answered  in  the  negative,  but  it  serves  no  purpose  to 
consider  this  point.     The  court  is  clear  upon  the  other  question. 


SELF   V.   DUNN   &   BROWN.  83 


SELF  V.  DUNN  &  BROWN. 

Supreme  Court  of  Georgia,  1871. 

[42  Ga.  528.] 

McCay,  J.  As  a  general  rule,  a  ferrjman  is  a  carrier,  and,  undei 
certain  circumstances,  he  is  a  common  carrier:  Angell  on  Carriers, 
section  82.  But  a  carrier  is  one  who  transports  goods  for  hire :  Re- 
vised Code,  section  2039.  A  common  carrier  is  one  wlio  pursues  the 
business  constant!}-  or  continuously,  for  any  period  of  time  or  any  dis- 
tance of  transportation :  Code,  section  2040.  One  who  "  pursues  the 
business."  What  business?  The  business  of  carrying  goods  for  hire. 
A  carrier  is  bound  to  ordinary  diligence.  A  common  carrier  can  give 
no  excuse  for  loss  or  damage  but  the  act  of  God  and  the  enemies  of  the 
State,  and  even  then  he  must  use  extraordinary  diligence:  Revised 
Code,  sections  2039,  2040.  And  this  is  but  a  restatement  of  the  com- 
mon law,  by  Jones,  Story,  Angell  and  other  writers  upon  the  subject. 
To  make  one  a  common  carrier,  he  must  be  entitled,  either  by  the  bar- 
gain or  bj'  implication,  to  toll  or  hire. 

This  whole  question,  in  a  case  very  like  this,  in  all  its  details,  was 
before  the  Supreme  Court  of  South  Carolina,  in  the  case  of  Littlejohn 
V.  Jones,  2  McMuUin's  Reports,  366.  That  was  a  case  of  a  ferry  — 
a  private  ferry  —  used  like  this,  as  an  appendage  to  a  mill.  There, 
however,  it  often  happened  that  persons,  other  than  customers  to  tlie 
mill,  passed  and  paid  ferriage ;  but  it  was  understood  that  the  payment 
was  optional,  and  went  to  the  servant,  the  main  purpose  of  the  ferry 
being  to  pass  the  customers  to  the  mill.  The  Court  held,  in  that  case, 
that  the  mere  fact  that  persons  paid  was  not  sufficient;  the  circum- 
stances must  be  such,  as  that  there  is  either  an  express  or  an  implied 
promise  to  pay.  The  use  of  it,  as  an  appendage  to  the  mill,  did  not 
alter  the  case. 

The  ferryman,  in  this  case,  was  a  mere  mandatory^  a  bailee,  not  for 
hire,  and  is  only  liable  for  gross  negligence :  Revised  Code,  §  2078. 
This  was  not  even  a  chartered  ferr}',  but  a  simple  accommodation  of 
the  mill-owner  to  his  customers.  It  is  very  subtle  reasoning  to  say 
that  the  increased  custom  to  his  mill  was  his  compensation.  But  one 
rarely  does  any  act  of  favor  to  others  that  does  not,  at  length,  repay 
him.  Is  it  fair  to  call  that  hire  ?  We  have  given  a  good  deal  of  search 
to  find  a  case  where  such  incidental  benefits,  coming  to  a  mandatory, 
have  been  held  to  change  his  character  and  make  him  a  bailee  for  hire, 
but  have  found  none. 

We  think  the  charge  was  wrong  on  this  point.  The  defendant  was 
only  liable  for  gross  neglect,  unless  he  was  in  the  habit  of  charging  toll : 
Revised  Code,  section  544.  Judgment  reversed. 


84  KOBERTSON   4   CO.   V.   KENNEDY. 


ROBERTSON   &  CO.  v.  KENNEDY. 
Court  of  Appeals,  Kentucky,  1834. 

[2  Dana  430.] 

Nicholas,  J.  Robertson  &  Co.  sued  Kennedy,  in  case,  for  the  loss  of 
a  hogshead  of  sugar,  which  he,  as  a  common  carrier,  had  undertaken, 
for  a  reasonable  compensation,  to  carry  from  the  bank  of  the  river,  to 
their  store  in  Brandenburgh. 

On  the  trial,  plaintiffs  introduced  proof  conducing  to  show  that 
defendant  had  been  in  the  habit  of  hauling  for  hire,  in  the  town  of 
Brandenburgh,  for  every  one  who  applied  to  him,  with  an  ox  teaj 
driven  b}'  his  slave;  that  he  had  undertaken  to  haul  for  plaintiffs  the 
hogshead  in  question,  and  that,  after  defendant's  slave  had  placed  the 
hogshead  on  a  slide,  for  the  purpose  of  hauling  it  to  plaintiff's  store  in 
Brandenburgh,  the  slide  and  hogshead  slipped  into  the  river,  whereby 
the  sugar  was  spoiled.  They  then  moved  the  court  to  instruct  the  jur}*, 
in  substance,  that  if  the}'  believed  this  proof  the  defendant  was  respon- 
sible for  the  loss  of  the  sugar,  unless  it  had  occurred  from  inevitable 
accident,  or  the  act  of  God.  This  instruction  the  court  refused  to  give  ; 
but  instructed  the  jur}'  that  defendant  was  responsible,  if  the  sugar  was 
lost  through  negligence,  or  from  want  of  reasonable  care. 

The  law  is  as  contended  for  by  the  plaintiffs.  Every  one  who  pur- 
sues the  business  of  transporting  goods  for  hire,  for  the  public  gener- 
ally, is  a  common  carrier.  According  to  the  most  approved  definition, 
a  common  carrier  is  one  who  undertakes,  for  hire  or  reward,  to  trans- 
port the  goods  of  all  such  as  choose  to  employ  him,  from  place  to  place. 
Draymen,  cartmen  and  porters,  who  undertake  to  carry  goods  for  hire, 
as  a  common  employment,  from  one  part  of  a  town  to  another,  come 
within  the  definition.  So  also  does  the  driver  of  a  slide  with  an  ox 
team.  The  mode  of  transporting  is  immaterial.  The  law  imposes 
upon  a  common  carrier  the  responsibility  of  an  insurer,  which  requires 
a  safe  delivery  at  all  events,  unless  prevented  by  public  enemies,  or 
such  inevitable  accident  as  lightning,  tempests  and  the  like,  which  are 
usually  termed  the  acts  of  God. 

The  court  erred  in  refusing  the  second  instruction  asked  by  the 
plaintiffs. 

Judgment  reversed,  with  costs,  and  cause  remanded  with  instruc- 
tions for  a  new  trial,  and  further  proceedings  consistent  herewith.^ 

1  Se6  accord:  Jackson  A.  I.  Wks.  v.  Hurlbut,  158  N.  Y.  34.  — Ed. 


FAUCHER   V.   WILSON.  85 


FAUCHER  V.  WILSON. 
Supreme  Court  of  New  Hampshire,  1895. 

[68  N.  H.  338.1] 

Chase,  J.  It  is  not  found  that  the  defendant  was  a  common  carrier. 
The  finding,  that  he  was  engaged  in  the  business  of  trucking  goods  for 
hire  from  the  railway'  freight  station  to  different  stores  in  the  city,  lacks 
the  distinguishing  characteristic  of  a  common  carrier,  namely,  the  hold- 
ing of  oneself  out  as  ready  "  to  carry  at  reasonable  rates  such  commod- 
ities as  are  in  his  line  of  business,  for  all  persons  who  offer  them,  as 
early  as  his  means  will  allow."  Sheldon  v.  Robinson,  7  N.  H.  157, 
163 ;  Elkins  v.  Railroad,  23  N.  H.  275 ;  Moses  v.  Railroad,  24  N.  H. 
71,  80,  88,  89  ;  McDuffee  v.  Railroad,  52  N.  H.  430,  448 ;  State  v. 
Express  Co.,  60  N.  H.  219,  261 ;  2  Kent,  597,  598;  Sto.  Bailm.,  §§  495, 
508 ;  Brind  v.  Dale,  8  C.  «&  P.  207 ;  Liver  Alkali  Co.  v.  Johnson,  L. 
R.  9  Exch.  338,  343  ;  Scaife  v.  Farrant,  L.  R.  10  Exch.  358,  365  ; 
Nugent  V.  Smith,  1  C.  P.  Div.  423 ;  Fish  v.  Chapman,  2  Kelly  (Ga.), 
349;  Allen  v.  Sackrider,  37  N.  Y.  341 ;  Lough  v.  Outerbridge,  143  N. 
Y.  271,  278.  The  inference  from  this  finding  is  as  strong,  to  say  the 
least,  that  the  defendant's  business  was  limited  to  trucking  for  particu- 
lar customers,  at  prices  fixed  in  each  case  by  special  contract,  as  it  is 
that  he  held  himself  out  as  ready  to  truck  for  the  public  indiscriminately 
at  reasonable  prices.  If  such  was  the  character  of  his  business,  he  was 
not  an  insurer  of  the  plaintiff's  goods,  —  there  being  no  special  contract 
of  insurance,  —  and  was  only  bound  to  exercise  ordinary  care  in  respect 
to  them.  ^ 

1  Only  one  point  is  printed.  —  Ed. 

«  See  accord:  Scaife  v.  Farrant,  L.  R.  10  Exch.  358.  —  Ed. 


86  FAY  V.    PACIFIC   IMPROVEMENT   COMPANY. 


FAY  V.  PACIFIC  IMPROVEMENT  COMPANY. 
Supreme  Codrt  of  Califobnia,  1892. 

[93  Cal.  253.] 

De  Haten,  J. — The  plaintifif  recovered  judgment  against  the  de- 
fendant for  damages  occasioned  b}'  the  loss  of  her  jewelr}',  wearing 
apparel,  and  other  articles  of  personal  propert}-  needed  for  her  personal 
use  consumed  b}'  fire  at  the  burning  of  the  Hotel  Del  Monte,  April  1, 
1887,  of  which  the  defendant  was  at  that  time  the  proprietor. 

The  court  below  found  that  the  Hotel  Del  Monte  was,  at  the  date 
named,  a  public  inn,  and  that  plaintiff  was  a  guest  therein.  On  this 
appeal  the  defendant  claims  that  the  evidence  does  not  sustain  these 
findings ;  and  also  that  the  burning  of  the  hotel  was  an  irresistible 
superhuman  cause,  for  which  it  is  not  liable,  and  that  it  is  not,  in  any 
event,  liable  for  plaintiffs  diamonds  and  other  jewelry,  because  not 
deposited  in  defendant's  safe. 

1 .  An  inn  is  a  house  which  is  held  out  to  the  public  as  a  place  where 
all  transient  persons  who  come  will  be  received  and  entertained  as 
guests  for  compensation,  —  a  hotel.  In  Wintermute  v.  Clark,  5  Sand. 
247,  an  inn  is  defined  as  a  public  house  of  entertainment  for  all  who 
choose  to  visit  it,  and  this  definition  was  quoted  with  approval  by  this 
court  in  Pinkerton  v.  Woodward,  33  Cal.  596.  The  fact  that  the  house 
is  open  for  the  public,  that  those  who  patronize  it  come  to  it  upon  the 
invitation  which  is  extended  to  the  general  public,  and  without  an}' 
previous  agreement  for  accommodation  or  agreement  as  to  the  duration 
of  their  staj',  marks  the  important  distinction  between  a  hotel  or  inn 
and  a  boarding-house.  This  diflerence  is  thus  stated  in  Schouler  on 
Bailments :  "  An  inn  is  a  house  where  a  keeper  holds  himself  out  as 
ready  to  receive  all  who  may  choose  to  resort  thither  and  pa}-  an  ade- 
quate price  for  the  entertainment ;  while  the  keeper  of  a  boarding- 
house  reserves  the  choice  of  comers  and  the  terms  of  accommodation, 
contracting  specially  with  each  customer,  and  most  commonly  arrang- 
ing for  long  periods  and  a  definite  abode."  (Schouler  on  Bailments, 
253.) 

We  think  the  evidence  in  this  case  is  full  and  complete  to  the  point 
that  the  Hotel  Del  Monte  was  a  public  inn.  It  not  only  had  a  name 
indicating  its  character  as  such,  but  it  was  also  shown  that  it  was  open 
to  all  persons  who  have  a  right  to  demand  entertainment  at  a  public 
house  ;  that  it  solicited  public  patronage  by  advertising  and  in  the  dis- 
tribution of  its  business  cards,  and  kept  a  public  register  in  which  its 
guests  entered  their  names  upon  arrival  and  before  they  were  assigned 
rooms ;  that  the  hotel,  at  its  own  expense,  ran  a  coach  to  the  rail- 
road station  for  the  purpose  of  conveying  its  patrons  to  and  from  the 


FAY   V.   PACIFIC   IMPROVEMENT   COMPANY.  87 

hotel ;  that  it  had  its  manager,  clerks,  waiters,  and  in  its  interior  man- 
agement all  the  ordinary  arrangements  and  appearances  of  a  hotel,  and 
the  prices  charged  were  for  board  and  lodging.  These  facts  were  cer- 
tainly sufficient  to  justify  the  court  in  finding,  as  it  did,  that  the  appel- 
lant was  an  innkeeper.  (Krohn  v.  Sweene}',  2  Daly,  200.)  Nor  was 
the  force  of  this  evidence  in  any  wise  modified  by  the  fact  that  the 
hotel  was  not  immediately  upon  a  highway,  or  that  the  grounds  upon 
which  it  stood  were  inclosed  and  the  gates  closed  at  night.  The  loca- 
tion of  the  hotel,  the  extent  of  the  grounds  surrounding  it,  and  the 
manner  in  which  these  grounds  were  improved,  and  reserved  for  the 
exclusive  use  and  enjoyment  of  those  who  patronized  it,  doubtless  made 
the  hotel  more  attractive  to  those  who  chose  to  make  a  transient  resort 
of  it,  but  did  not  convert  it  into  a  mere  boarding-house.  A  hotel  is 
none  the  less  one  because  in  some  respects  it  may  be  conducted  differ- 
ently or  have  more  attractions  than  other  public  hotels,  so  long  as  it 
is  held  out  to  the  public  as  a  place  for  the  entertainment  of  all  transient 
persons  who  may  have  occasion  to  patronize  it. 

"  Modes  of  entertainment  alter  with  the  fashion  of  the  age,  and  to 
preserve  a  clear  definition  is  not  easy.  It  is  not  wayfarers  alone,  or 
travelers  from  a  distance,  that  at  the  present  day  give  character  to  an 
inn,  the  point  being  rather  that  people  resort  to  the  house  habituallj", 
no  matter  whence  coming  or  whither  going,  as  for  transient  lodging 
and  entertainment."     (Schouler  on  Bailments,  249.) 

2.  The  evidence  shows  that  the  plaintiff"  was  a  guest,  and  not  a 
boarder.  The  fact  that  upon  her  arrival,  and  before  being  assigned  to 
her  room,  she  ascertained  what  she  would  have  to  pay  for  the  room  and 
board  is  not  sufficient  of  itself  to  show  that  she  was  not  received  as  a 
guest.  (Pinkerton  a?.  Woodward,  33  Cal.  597;  Hancock  v.  Rand,  94 
N.  Y.  1,  46  Am.  Rep.  112;  Jalie  v.  Cardinal,  35  Wis.  118;  Hall  v. 
Pike,  100  Mass.  495  ;  Berkshire  Woolen  Co.  v.  Proctor,  7  Cush.  417.) 

The  Del  Monte  being  a  public  hotel,  in  the  absence  of  evidence 
showing  that  plaintiff  went  there  as  a  boarder,  the  presumption  would  be 
that  she  went  there  as  a  guest.  (Hall  v.  Pike,  100  Mass.  495.)  Not  only 
does  the  evidence  fail  to  overthrow  this  presumption,  but  the  testimony 
of  the  plaintiff"  shows  that  she  was  there  as  a  mere  temporar}'  sojourner, 
without  any  agreement  as  to  the  time  she  should  stay,  and  with  only  the 
intention  on  her  part  of  resting  a  week  or  two,  and  then  proceeding  to 
the  East.  She  obtained  no  reduction  of  price  in  consideration  of  an 
agreement  to  remain  a  definite  time,  or  as  a  boarder;  nor  was  there 
anything  said  from  which  it  could  be  inferred  that  there  was  siny  under- 
standing between  her  and  the  defendant  that  she  was  to  be  received  as 
a  boarder,  and  not  as  a  guest. 

3.  Under  section  1859  of  the  Civil  Code,  an  innkeeper  is  liable  for 
the  loss  of  personal  property  placed  b}'^  his  guests  under  his  care, 
"  unless  occasioned  by  an  irresistible  superhuman  cause,  by  a  public 
enemy,  by  the  negligence  of  the  owner,  or  by  the  act  of  some  one  whom 
he  brought  into  the  inn." 


88  FAY  V.   PACIFIC   IMPROVEMENT  COMPANY. 

In  this  case,  the  loss  was  occasioned  by  the  burning  of  the  hotel,  and 
the  origin  of  the  fire  is  not  shown  further  than  that  it  broke  out  in  one 
of  the  rooms  in  which  there  was  nothing  except  the  batteries  which  sup- 
plied the  bells  with  electricit}-.  Under  this  state  of  facts,  the  defendant 
is  liable.  (Hulett  v.  Swift,  33  N.  Y.  571 ;  88  Am.  Dec.  405.)  A  fire 
thus  occurring  cannot  be  considered  an  "  irresistible  superhuman 
cause,"  within  the  meaning  of  section  1859  of  the  Civil  Code.  The 
words  "  irresistible  superhuman  cause "  are  equivalent  in  meaning  to 
the  phrase  "the  act  of  God,"  and  refer  to  those  natural  causes  the 
effects  of  which  cannot  be  prevented  by  the  exercise  of  prudence,  dili- 
gence, and  care,  and  the  use  of  those  appliances  which  the  situation  of 
the  part}'  renders  it  reasonable  that  he  should  emploj'.  (1  Am.  & 
Eng.  Ency.  of  Law,  174.)  A  loss  arising  from  an  accidental  fire  is  not 
caused  by  the  act  of  God,  unless  the  fire  was  started  by  lightning  or 
some  superhuman  agency.  (Miller  v.  Steam  Nav.  Co.,  10  N.  Y.  431; 
Chicago,  etc.  R.  R.  Co.,  v.  Sawyer,  69  111.  285;  18  Am.  Rep.  613.) 

4.  The  court  finds  that  the  property  lost  was  such  as  was  needed  for 
the  present  personal  use  of  the  plaintiff.  We  cannot  say  that  the  evi- 
dence does  not  support  this  finding.  It  certainly  cannot  be  said  that 
jewelry  worn  by  a  woman  daily,  must,  when  not  actuall}'  upon  her  per- 
son, be  deposited  with  the  innkeeper,  in  order  to  make  him  responsi- 
ble for  its  loss  in  the  inn.  If  worn  daily,  it  does  not  cease  to  be  needed 
for  present  personal  use  when  its  possessor  lays  it  aside  upon  retiring 
for  the  night.  Nor  is  it  necessary,  in  order  to  render  the  innkeeper 
liable,  that  the  propert}'  should  have  been  delivered  into  his  exclusive 
personal  possession. 

"  The  guest  may  retain  personal  custody  of  his  goods  within  the 
inn,  — as  of  his  trunk  and  its  contents,  his  wearing  apparel,  and  other 
articles  in  his  room,  and  any  jewelry  or  valuables  carried  or  worn  about 
his  person,  —  without  discharging  the  innkeeper  from  responsibility." 
(Jalie  V.  Cardinal,  35  Wis.  126.) 

We  have  examined  the  other  points  made  by  appellant,  but  do  not 
think  thej-  call  for  special  discussion. 

The  rule  which  makes  an  innkeeper  liable  for  the  value  of  the  prop- 
erty* of  his  guest,  in  case  of  its  loss  by  fire,  may  at  first  thought  be 
deemed  a  harsh  one;  but  the  loss  must  fall  somewhere,  and  section 
1859  of  the  Civil  Code  provides  upon  whom  it  should  properly  fall,  and 
the  innkeeper's  liability  in  this  respect  is  one  of  the  burdens  pertaining 
to  the  business  in  which  he  is  engaged,  and  in  view  of  which  it  must  be 
Bupix>sed  that  he  regulates  his  charges. 

Judgment  and  order  affirmed} 

»  Accord:  Pinkerton  r.  Woodward,  .33  Cal.  557  (1867);  Walling  v.  Potter,  35 
Conn.  183  (1868)  ;  Ballock  v.  Adair,  63  111.  App.  30  (1895)  j  Lyon  v.  Smith,  Morris, 
184  (1843);  Kisten  v.  Hildebrand,  9  B.  Mon.  72(1848);  Johnson  v.  Chadbourne 
Finance  Co.,  89  Minn.  310  (1903)  ;  Wintermute  v.  Clarke,  5  Sandft-  242  (1851) ;  State 
V.  Mathews,  2  Dev.  &  B.  424  (1837),  4  Humph.  19  (  ) ;  Thompson  v.  Lacy,  3  B. 
4  Aid.  283  (1820). 


HOWTH   V.   FRANKLIN.  89 


HOWTH  V.   FRANKLIN. 

Supreme  Court  op  Texas,  1858. 

[20  Tex.  798.] 

Roberts,  J.  The  Court  charged  the  jur}-,  that  "the  material 
question  in  this  case  is  whether  or  not  the  defendant  is  liable  as  the 
keeper  of  a  common  inn.  An  innkeeper  is  one  who  holds  himself  out 
to  the  public  as  engaged  in  the  business  of  keeping  a  house  for  the 
lodging  and  entertainment  of  travellers  and  passengers,  their  horses 
and  attendants,  for  reasonable  compensation.  He  is  liable  for  any  loss 
of  propert}'  committed  to  his  keeping,  which  any  care  or  vigilance  or 
diligence  on  his  part  could  have  prevented.  If  the  defendant  only 
occasionally  entertained  travellers  for  compensation,  when  it  suited  his 
pleasure  to  do  so,  and  did  not  hold  himself  out  to  the  public  as  the 
keeper  of  an  inn,  or  house  for  the  accommodation  of  the  travelling 
public,  then  the  defendant  was  only  bound  to  take  that  ordinary  care 
of  property  committed  to  his  keeping,  that  a  prudent  man  usually  takes 
of  his  own  propert}',  of  the  same  kind ;  and  he  would  not  be  liable 
for  a  loss,  unless  it  was  shown  that  he  had  failed  to  use  ordinary  dili- 
gence in  the  care  of  the  property  committed  to  him." 

By  the  facts  as  presented  in  the  record,  there  can  be  no  dispute 
about  anything  but  as  to  whether  or  not  Howth  was  an  innkeeper. 
The  diligence  used  was  ordinar}',  but  not  extreme  ;  and  therefore,  if  he 
were  an  innkeeper,  he  was  liable.  When  property,  committed  to  the 
custod}'  of  an  innkeeper  by  his  guest,  is  lost,  the  presumption  is  that 
the  innkeeper  is  liable  for  it;  and  he  can  relieve  himself  from  that 
liabilit}'  by  showing  that  he  has  used  extreme  diligence.  What  facts 
will  excuse  him  is  a  question  perhaps  not  very  well  settled ;  but  it  is 
well  settled  that  he  cannot  excuse  himself  without  showing  that  he 
has  used  extreme  care  and  diligence  in  relation  to  the  property  lost. 
(Edwards  on  Bailments,  406;  2  Kent,  Com.  592.) 

The  charge  of  the  Court  then  was  correct,  in  reference  to  the  facts 
of  this  case,  both  as  to  what  constitutes  an  innkeeper,  and  as  to  his 
liability.  Had  the  facts  shown  that  more  than  ordinary  diligence  was 
used  in  taking  care  of  the  horse,  which  was  lost,  then  it  might  have 
been  required  of  the  Court  to  have  been  more  specific  in  the  charge,  as 
to  what  facts  would  excuse  an  innkeeper,  and  as  to  what  is  meant  by 
extreme  diligence  under  the  circumstances. 

A  person  may  hold  himself  out  to  the  public  as  an  innkeeper,  by  his 
acts,  as  well  as  by  his  declarations,  or  by  a  sign.  (Edwards  on  Bail- 
ments, 388.)  His  acts  might  also  force  that  conclusion,  even  against 
his  declarations.     To  such  conclusion  must  the  jury  have  come  in  this 


90  HOWTH   V.  FRANKLIN. 

case.  That  was  the  question  really  at  issae,  and  most  prominently 
and  fairly  presented  to  them  b}'  the  Court.  The  record  shows  that  on 
the  one  hand,  his  house  was  on  a  public  road  and  much  visited  by 
travellers,  who  were  uniformly  taken  in,  entertained  and  charged ;  and 
that  it  was  well  known  as  a  place  where  entertainment  was  usually 
obtained  for  travellers;  on  the  other  hand,  his  frequent  declara- 
tions that  he  did  not  keep  a  tavern,  his  refusal  to  take  boarders,  and 
entertaining  his  neighbors  and  countrymen  frequently  free  of  charge. 
Here  is  presented  a  conflict  in  the  testimony,  leading  to  different  con- 
clusions, which  it  is  peculiarly  the  province  of  the  jury  to  judge  of  and 
determine  upon. 

There  are  numerous  farmers  situated  on  the  public  roads  of  the 
country,  who  occasion  all}-,  and  even  frequently,  take  in  and  accommo- 
date travellers,  and  receive  compensation  for  it,  who  are  not  inn- 
keepers, and  are  not  liable  as  such.  It  is  not  their  business  or 
occupation,  nor  do  the}'  prepare  and  fit  up  their  establishments  for  it. 
They  yield  to  the  laws  of  hospitality,  in  receiving  and  entertaining  the 
stranger  and  the  traveller,  yet  they  cannot  afford  to  do  so  without 
some  compensation.  This  view  of  the  subject  the  Court  also  presented 
to  the  minds  of  the  jury,  by  telling  them  in  substance,  that  if  defendant 
only  occasionally  entertained  travellers  for  compensation,  when  it 
suited  his  own  pleasure,   he  did  not  thereby  become  an  innkeeper. 

The  question  then,  of  whether  he  was  an  innkeeper  or  not,  having 
been  fully  and  fairly  presented  to  the  jury,  and  the  evidence  on  that 
subject  being  conflicting,  the  verdict  of  the  jury  will  not  be  disturbed. 
The  evidence  in  favor  of  Howth  on  this  issue  is  strong ;  and  had  the 
verdict  been  in  his  favor,  it  would  not  have  been  disturbed. 

There  is  even,  as  the  facts  appear  to  this  Court,  a  preponderance 
in  his  favor,  though  not  to  that  extent  that  would  enable  us  to  say  that 
the  verdict  is  certainly  wrong ;  and  therefore  it  must  stand.^ 

Judgment  affirmed. 

1  Accord:  Beall  v.  Beck,  Fed.  Cas.  1161,  (  )  ;  Bonner  r,  Welbom,  7  Ga.  296, 
(1849) ;  Southward  v.  Myers,  3  Bush.  681  (1868) ;  Holstein  v.  Phillips,  N.  C.      , 

69  S.  E.  1037  (1907) ;  Commonwealth  v.  Cuncannon,  8  Brewst.  344  (1869) ;  Howth 
r.  Franklin,  20  Tex.  798,  73  Am.  Dec.  218  (1858) ;  Clary  v.  Willey,  49  Vt.  55  (1875). 


BRIDA.L   VEIL  LUMBERING   COMPANY  V.   JOHNSON.  91 

BRIDAL  VEIL  LUMBERING  COMPANY  v.  JOHNSON. 

Supreme  Court  op  Oregon,  1896. 

[30  Oreg.  205.] 

Bean,  J.  1.  There  being  no  bill  of  exceptions  in  the  record,  the 
onl}"  question  for  our  determination  is  whether  the  findings  of  fact  sup- 
port the  judgment.  The  right  of  eminent  domain  is  a  right  of  sover- 
eigntj',  and  can  be  exercised  only  by  legislative  authority,  and  for  a 
public  use  or  benefit.  When,  therefore,  a  particular  corporation  claims 
the  right  to  take  private  property  without  tlie  consent  of  the  owner,  it 
must  show  not  only  a  legislative  warrant,  but  if  its  right  is  challenged 
on  that  ground,  it  must  be  able  to  establish  the  fact  that  the  enterprise 
in  which  it  is  engaged  is  one  by  which  a  public  use  or  benefit  is  to  be 
subserved  or  promoted,  so  that  such  taking  can  be  said  to  be  for  a 
public  and  not  a  private  use.  The  necessit}-  or  expedienc}'  of  taking 
private  property  for  public  use,  the  instrumentalities  through  which  it 
ma}'  be  done,  and  the  mode  of  procedure,  are  legislative  and  not  judicial 
questions.  But,  whether  the  proposed  use  thereof  is  in  fact  public,  so 
as  to  justif}-  its  taking  without  the  consent  of  the  owner,  has  always 
been  a  question  for  the  courts  to  determine,  and,  in  doing  so,  thej'  are 
not  confined  to  the  description  of  the  objects  and  purposes  of  the  cor- 
poration as  set  forth  in  its  articles  of  incorporation,  but  may  resort  to 
evidence  aliunde  showing  the  actual  business  proposed  to  be  conducted 
by  it :  Lewis  on  Eminent  Domain,  §  158  ;  Matter  of  Niagara  Falls  & 
Whirlpool  R.  Co.,  108  N.  Y.  375  (15  N.  E.  429)  ;  Chicago  &  E.  I.  R.R. 
Co.  V.  Wiltse,  116  111.  449  (6  N.  E.  49). 

2.  Now,  in  this  case,  from  the  findings  of  fact,  it  clearl}'  appears  that 
plaintiff  is  a  corporation  organized  for  the  construction  of  a  railroad  for 
the  transportation  of  freight  and  passengers,  and  therefore  sections  3239 
and  3240,  Hill's  Code,  invest  it  with  authority  to  exercise  the  power  of 
eminent  domain,  if  the  use  it  intends  to  make  of  the  propert\'  sought  to 
be  taken  is  in  fact  public.  Bearing  upon  this  question,  the  findings  are 
that  it  has  already  constructed  five  and  a  half  miles  of  road,  and  is  now 
and  has  been  operating  the  same  for  the  use  and  benefit  of  the  general 
public  in  carrying  freight  and  passengers,  and  there  is  nothing  in  the 
record  anyv^here  to  indicate  that  the  road  has  ever  been  used  or  is  in- 
tended to  be  used  for  any  other  or  different  purpose,  or  that  it  was 
built  or  intended  for  a  logging  road,  or  has  ever  been  used  for  that  pur- 
pose ;  or,  in  fact,  that  it  is  in  any  way  connected  with  or  a  part  of  the 
mill  enterprise ;  or,  indeed,  except  by  inference,  that  it  belongs  to  the 
mill  compan3\  We  are,  therefore,  unable  to  say  that  the  court  was  in 
error  in  holding  that  the  railroad  of  plaintiff  is  public  so  as  to  justify 
the  exercise  in  its  behalf  of  the  power  of  eminent  domain.     The  fact 


92  BRIDAL  VEIL  LUMBERING  COMPANY  V.   JOHNSON. 

that  it  has  not  been  fully  completed  between  the  termini  indicated  in  its 
articles  of  incorporation,  or  that  there  is  at  present  no  town,  city,  or 
settlement,  or  other  railroad  at  its  proposed  southeastern  terminus,  or 
that  its  proposed  route  is  through  a  rough,  mountainous,  and  sparsely 
settled  country,  or  that  the  plaintiff  has  not  yet  fully  equipped  the  road, 
or  supplied  itself  with  complete  and  perfect  terminal  facilities,  or  that 
it  has  not  charged  the  passengers  upon  its  railroad  any  fare,  does  not 
affect  its  right  to  exercise  the  power  of  eminent  domain.  The  question 
of  public  use  is  not  determined,  as  a  matter  of  law,  by  an}-  of  these 
things,  but  by  the  fact  that  the  proposed  road  is  intended  as  a  highway 
for  the  use  of  the  public  in  the  transportation  of  freight  and  passengers. 
And  it  can  make  no  difference  that  its  use  may  be  limited  b}'  circum- 
stances to  a  small  part  of  the  communit}'.  Its  character  is  determined 
by  the  right  of  the  public  to  use  it,  and  not  by  the  extent  to  which  that 
right  is  exercised:  De  Camp  v.  Hibernia  Railroad  Co.,  47  N.  J.  Law, 
43  ;  Phillips  v.  Watson,  73  Iowa,  28  (18  N.  W.  659) ;  Ross  v.  Davis, 
97  Ind.  79. 

If  every  one  having  occasion  to  use  the  road  as  a  passenger  or  for 
transportation  of  freight  may  do  so,  and  of  right  may  require  the  plain- 
tiff to  serve  him  in  that  respect,  it  is  a  public  way,  although  the  number 
actually  exercising  the  right  is  very  small.  The  findings  of  the  court 
show  that  the  enterprise  in  which  plaintiff  is  engaged,  and  for  which  it 
requires  the  land  in  question,  is  of  this  character,  and  therefore  we  have 
no  alternative  but  to  affirm  the  judgment.  In  doing  so,  however,  we 
do  not  desire  to  be  understood  as  holding  that  a  railroad  constructed 
by  a  mill  company  for  the  evident  purpose  of  transporting  logs  to  its 
mill  can  become  a  public  highwaj',  so  as  to  justifj*  the  exercise  of  the 
power  of  eminent  domain  in  its  behalf,  because  of  an}-  declaration  in  its 
articles  of  incorporation  to  that  effect,  or  on  account  of  any  right  of  the 
public  to  use  it  for  the  transportation  of  freight  and  passengers.  No 
such  question  is  presented  by  this  record.  The  findings  of  the  court  by 
which  we  are  bound  negative  such  an  inference,  and  this  decision  is 
based  upon  the  facts  as  found  by  the  court  below.  The  judgment  must 
therefore  be  afiSrmed.^  Affirmed. 

1  As  to  public  railways,  see:  Butler  v.  Tifton  Ry.  Co.  121  6a.  817  (1904)  ;  Phillips 
V.  Watson,  63  Iowa,  28  (1884) ;  Louisville,  etc.  R.R.  Co.  v.  Pittsburg  &  K.  Coal  Co., 
23  Ky.  L.  Rep.  1318,  64  S.  W.  969,  55  L.  R.  A.  601  (1901) ;  Ulmer  v.  Lime  Rock  R.R. 
Co.,  98  Me.  579,  57  Atl.  100  (1904) ;  New  Central  Coal  Co.  v.  George's  Creek  C.  &  I. 
Co.,  37  Md.  537  (1872);  Kettle  River  R.R.  Co.  v.  Eastern  Ry.  Co.,  41  Minn.  461; 
Dietrich  v.  Murdock,  42  Mo.  279  (1868) ;  Butte,  A.  &  P.  Ry.  Co.  «;.  Montana  Union 
Ry.  Co.,  16  Mont.  504.41  Pac.  232,  ."iO  Am.  St.  Rep.  508,  31  L.  R.  A.  298  (1895)  ; 
Bridal  Veil  Lumbering  Co.  v.  Johnson,  30  Oreg.  205,  46  Pac.  790,  60  Am.  St.  Rep. 
818,  34  L.  R.  A.  368  (1896) ;  Maginnis  v.  Knickerbocker  Ice  Co.,  112  Wis.  385  (1901). 


MATTER  OF  THE  SPLIT  ROCK  CABLE  ROAD.  93 


MATTER  OF  THE  SPLIT  ROCK  CABLE  ROAD 

COMPANY  TO  ACQUIRE  REAL  ESTATE  OF 

CHARLES  HUGHES   et  al. 

Court  of  Appeals  op  New  York,  1891. 

[128  N.  Y.  408.1] 

O'Brien,  J.  The  map  of  its  route  originally  filed,  taken  in  connec- 
tion with  the  evidence,  shows  that  the  southern  terminus  of  the  tram- 
way is  upon  the  land  of  the  petitioner  and  near  the  establishment  of 
the  Solvay  Process  Company,  a  corporation  engaged  in  a  large  and 
growing  business,  consisting,  as  is  to  be  inferred  from  the  evidence,  in 
the  production  of  soda  ash.  This  company  owns  one  hundred  acres  of 
land  upon  which  are  stone  quarries,  and  this  land  entirely  surrounds 
the  terminus  of  the  tramway  as  well  as  the-  land  in  question.  The 
northern  terminus  of  the  tramway  as  now  built  is  also  on  the  lands  of 
the  Solvay  Process  Company  at  the  lime-kiln  of  their  works,  about 
500  feet  from  the  Erie  canal.  The  incorporators  of  the  petitioner  were 
practically  all  stockholders  and  persons  interested  in  the  Solvay  Com- 
pany, and  it  is  quite  apparent  that  the  petitioner  was  organized  and  is 
operated  as  an  instrumentality  to  facilitate  the  business  operations  of 
the  Solvay  Company.  The  only  business  that  it  has  thus  far  carried 
on  was  for  that  companj-.  As  now  constructed  the  limit  of  its  carrNing 
capacity  cannot  exceed  750  tons  per  day.  It  has  thus  far  been  oper- 
ated practically  night  and  day,  and  has  succeeded  in  carrying  for  the 
Solvay  Company  350  to  400  tons  of  stone  a  da}'.  There  is  no  public 
highway  leading  to  the  northern  terminus  of  the  road  b}^  means  of 
which  the  public  can  obtain  access  for  its  use ;  that  the  road  has  thus 
far  been  entirely  for  the  benefit  of  the  Solvay  Company,  and  that  its 
business  is  to  be  entirely  subordinate  in  the  future  to  the  plans  and 
interests  of  the  same  compan}'  is  entirely  clear.  From  the  evidence  of 
the  president  of  the  petitioner  and  other  witnesses  in  support  of  the 
application  the  most  that  is  claimed  is  that  the  surplus  of  the  capacit}' 
of  the  road,  after  supplying  the  wants  of  the  Solvay  Company,  is  to  be 
devoted  to  public  use  in  carrying,  in  buckets,  freight  offered  to  it  by 
any  person,  providing  such  freight  is  suitable  to  the  buckets  and  the 
road.  Whether  there  is  to  be  an}'  surplus  capacit}'  as  the  Solvay 
Compan}'  continues  to  expand  its  business,  and,  if  so,  how  much,  are 
questions  which  are  left  entirely  uncertain.  From  the  testimony,  it 
appears  that  the  lands  are  required  in  order  to  increase  the  terminal 

1  The  first  part  of  the  opinion  largely  devoted  to  the  recital  of  the  legislation  par- 
porting  to  authorize  companies  constructing  cable  tramways  to  condemn  lands  i» 
omitted.  —  Ed. 


94  MATTER  OF  THE  SPLIT  ROCK   CABLE   ROAD. 

facilities  of  the  tramway  companj*  by  building  other  tramways  on  the 
surface  to  facilitate  the  carrying  of  stone  to  the  cable  station,  by  erect- 
ing buildings  for  the  storage  of  freight  and  for  repair  shops,  and  to 
furnish  means  of  access.  The  company  has  other  lands  that  could  be 
used  for  these  purposes,  but  it  is  not  so  convenient.  The  evidence 
does  not  suggest  any  business  that  the  petitioner  is  to  carrj*  on  in  the 
future  any  more  than  in  the  past,  beyond  the  carrying  of  stone  for  the 
Solvay  Company,  except,  possibly,  the  carrying  of  coal.  In  regard  to 
that,  it  is  best  to  describe  the  project  in  the  language  of  the  president 
himself,  who  said:  "We  intend  to  make  a  contract  with  some  private 
individual  to  furnish  him  with  coal,  so  that  he  can  transport  it  or  sell 
it  to  people  in  that  vicinity ;  to  establish  a  coal  yard  the  same  as  any- 
where, not  that  the  Solvay  Process  Compan}'  or  the  cable  company  will 
establish  a  coal  jard ;  some  individual  will  have  to  run  it,  with  whom 
we  will  make  a  contract  to  carr}'  coal,  and  we  propose  to  limit  the  con- 
tract to  one  individual  for  the  present."  Looking  at  the  statute  under 
which  the  petitioner  was  incorporated,  the  object  of  its  incorporation 
as  described  in  the  certificate  and  the  evidence  in  regard  to  the 
manner  in  which  it  has  been  and  is  to  be  operated  and  the  purpose  of 
its  corporate  existence,  we  think  it  is  entirel}^  clear  that  the  use  to 
which  the  petitioner  is  to  devote  the  lands  of  the  respondents  is  not 
public,  but  private.  The  principles  governing  applications  by  corpo- 
rations of  this  character  to  take  private  propert}'  for  its  corporate 
purposes,  have  been  ver\'  fully  discussed  and  stated  in  a  recent  case  in 
this  court.  (Matter  of  Niagara  Falls  &  Whirlpool  Ry.  Co.,  108  N.  Y. 
375.)  Under  the  doctrine  of  this  and  other  cases,  a  possible  limited 
use  b}'  a  few,  and  not  then  as  a  right  but  by  way  of  permission  or 
favor,  is  not  sufficient  to  authorize  the  taking  of  private  property 
against  the  will  of  the  owner.  (Matter  of  Deansville  Cemeter}*  Assn., 
66  N.  Y.  569 ;  Matter  of  Eureka  Basin,  Warehouse  &  M.  Co.,  96  id. 
42;  Matter  of  Rochester,  Hornellsville  &  Lack,  R.  Co.,  110  id.  119  ; 
Matter  N.  Y.,  L.  &  W.  Ry.  Co.,  99  id.  12.)  The  order  appealed  from 
is  right,  and  should  be  affirmed,  with  costs.  All  concur.  Order 
affirmed.^ 

^  As  to  private  railways,  see:  Wade  v.  Lutcher  &  Moore  Lumber  Co.,  74  Fed.  517 
(1896) ;  Weidenfeld  v.  Sugar  Run  Ry..  48  Fed.  615  (1892)  ;  Albion  Lumber  Co.  v.  De 
Nobra,  72  Fed.  739  (1896);  contra  Costa  R.  R.  Co.  i-.  Moss,  23  Cal.  323  (1863); 
White  f.  Keunon  &  Co.,  83  Ga.  343  (1889)  ;  Normandale  Lumlier  Co.  v.  Knight,  89 
Ga.  Ill  (1892);  Garbutt  Lumber  Co.  v.  Georgia  &c.  Ry.,  Ill  Ga.  714  (1900);  Litch- 
field &  M.  Ry.  Co.r.  The  People,  222  111.  242  (1906)  ;  Williams,  et  a/,  v.  Judge,  45  La. 
Ann.  1295  (  );    Kettle  River  R.  R.  Co.  v.  Eastern  Ry.  Co.,  41  Minn.  461  (1889)  ; 

Leigh  V.  Garysburg  Mfg.  Co.,  132  N.  C.  167  (1903) ;  Cozard  v.  Hardwood  Co.,  139 
N.  C.  283  (1905). 


HAUGEN   V.   ALBINA  LIGHT   AND   WATER  CO. 


HAUGEN  V.  ALBINA   LIGHT  AND  WATER  CO. 

Supreme  Court  of  Oregon,  1891. 

[21  Ore.  411.1] 

This. is  an  action  for  a  writ  of  mandamus  to  require  the  defendant 
to  supply  the  plaintiff  with  water  by  tapping  a  certain  water-main  on 
Tillamook  Street,  and  allowing  him  to  connect  a  service-pipe  therewith, 
&c.  The  facts  alleged  in  substance  are  these  :  That  the  defendant  is 
a  corporation,  the  business  of  which,  among  other  things,  is  to  furnish 
the  cit}'  of  Albina,  and  the  inhabitants  thereof,  with  water  ;  that  it  is 
operating  under  a  franchise  granted  to  said  company  by  the  council  of 
the  city  of  Albina,  by  virtue  of  an  ordinance,  as  follows :  "  An  ordi- 
nance granting  the  right  of  waj'  through  the  streets  for  laying  pipes  for 
the  purpose  of  conveying  water  through  the  city.  The  city  of  Albina 
does  ordain  as  follows  :  Section  1.  That  the  Albina  Water  Company, 
its  successors  and  assigns,  be  and  are  hereby  granted  the  right  and 
privilege  of  laying  pipes  through  the  streets  of  the  citj^  of  Albina,  for 
the  purpose  of  conducting  water  through  the  city.  Section  2.  That 
the  ditches  for  laying  pipes  shall  be  sunk  two  feet,  and  the  pipes  for 
conducting  the  water  shall  be  under  the  surface  or  level  of  the  estab- 
lished grade  eighteen  to  twentj-  inches  on  all  improved  streets,  and  no 
pipe  shall  be  laid  so  as  to  interfere  with  the  construction  of  sewers  ;  pro- 
vided, that  nothing  in  this  ordinance  shall  be  construed  so  as  to  grant 
any  exclusive  right  or  privilege  of  conducting  water  into  the  cit}^ ;  pro- 
vided further,  that  said  water  company  shall  in  no  case  charge  more 
than  one  dollar  per  month  for  the  first  faucet  and  fifty  cents  for  each 
additional  faucet  in  the  same  building,  for  family  use  or  at  a  private 
dwelling  house,"  &c.  That  the  purpose  and  object  of  granting  to  said 
eompauN'  the  right  to  laj*  water-mains  in  the  streets  of  said  citj',  was  that 
the  citizens  of  said  city  might  be  furnished  with  a  suppl}'  of  pure  and 
wholesome  water ;  that  by  virtue  of  the  authority*  conferred  by  said 
ordinance,  the  defendant  laid  down  a  four-inch  water-main  in  and 
through  Tillamook  Street  in  the  then  city  of  Albina,  from  the  east  line 
of  the  original  townsite  of  the  cit}'  of  Albina,  to  the  west  line  of 
Twenty-fourth  Street  in  Irvington,  and  connected  the  said  main  with 
the  main  on  Margaretta  Avenue  in  said  city,  and  for  nearly  a  year  past 
has  been  pumping  water  and  conducting  it  through  said  main  on  Tilla- 
mook Street  to  supply  the  citizens  of  Irvington  residing  east  of  Four- 
teenth Street;  that  the  defendant  utterly  refuses  to  allow  persons 
residing  on  Tillamook  Street  between  the  east  line  of  the  original  town- 
site  of  Albina  and  Fourteenth  Street  in  Irvington,  to  tap  said  main,  and 
refuses  to  supply  them  with  water  therefrom  ;  that  the  plaintiff  resided 
on  Tillamook  Street  between  the  points  above  named,  and  is  the  owner 

1  This  case  is  abridged.  —  Ed. 


96  HAUGEN   V.   ALBINA  LIGHT  AND   WATER  CO. 

of  lot  2,  block  126,  of  Irvington;  that  said  lot  abats  on  said  Tillamook 
Street,  and  the  plaintiff  is  constructing  a  dwelling  thereon,  and  is  desir- 
ous of  securing  a  supply  of  water  from  the  water-mains  of  said  street, 
that  being  the  only  source  of  water  supply  for  said  premises  ;  that  the 
plaintiff  has  repeatedly  requested  the  defendant  to  supply  him  with 
water  from  said  main,  but  has  always  been  refused ;  that  on  the 
eleventh  day  of  July  the  plaintiff  tendered  said  defendant  two  dollars 
and  fifty  cents,  the  regular  fee  charged  by  the  defendant  for  tapping  a 
water-main  with  a  service  pipe,  and  demanded  from  the  defendant  to 
be  connected  with  said  water-main  in  Tillamook  Street,  and  to  be  sup- 
plied therefrom  with  water,  and  that  said  defendant  refused  to  accept 
said  tender,  and  refused  to  connect  the  plaintiff's  premises  with  said 
main,  and  refused  to  supply  him  with  water  therefrom ;  that  said  re- 
fusal is  wilful,  and  is  done  for  the  avowed  purpose  of  debarring  the 
residents  on  said  Tillamook  Street,  between  the  original  townsite  of 
Albina  and  Fourteenth  Street,  and  particularly  the  plaintiff,  from  the 
use  of  water  from  said  main ;  that  the  plaintiff  is  without  any  legal 
remedy  in  the  premises  except  the  writ  of  mandamus,  etc. 

Lord,  J.  From  this  statement  of  the  case,  as  presented  by  the 
pleadings,  the  court  below  held  that  when  the  defendant  entered  upon, 
and  laid  down  its  water-mains  in  the  street,  in  pursuance  of  the  privi- 
lege granted  by  the  ordinance,  it  became  bound  to  supply  every  abutter 
upon  the  street  with  water. 

The  contention  for  the  defendant  is,  that  the  ordinance  does  not  im- 
pose the  duty  upon  it  to  furnish  water,  but  only  if  it  shall  furnish  water, 
that  the  charge  therefor  shall  not  exceed  a  certain  sum  therein  speci- 
fied ;  that  the  grant  is  to  la}'  pipes  through  the  streets,  for  the  purpose 
of  conducting  water  through  the  city  in  the  mode  prescribed,  and  so  as 
not  to  interfere  with  the  construction  of  sewers,  but  that  it  contains 
no  provision  requiring  it  to  supply  the  city  or  its  inhabitants  with  water, 
hence  the  ordinance  imposes  no  duty  upon  the  compan}'  to  furnish 
water  to  any  one. 

In  whatever  form  the  argument  is  presented,  it  rests  essentially  upon 
this  contention.  "While  admitting  that  it  is  a  corporation  organized  to 
supply  the  city  and  its  inhabitants  with  water,  and  that  the  city  by  its 
ordinance  granted  it  the  right  to  lay  water-mains  through  its  streets  for 
the  purpose  of  carrying  into  effect  the  objects  of  its  incorporation,  it 
insists  that  the  ordinance  is  the  measure  of  the  rights  conferred  and  the 
obligation  imposed,  which,  by  its  terms,  only  grants  "  the  right  and 
privilege  of  laying  pipes  through  the  streets  of  the  city  of  Albina  for 
the  purpose  of  conducting  water  through  the  city,"  under  the  condi- 
tions imposed,  without  "  a  word  in  the  language  of  the  grant  from 
which  it  could  be  inferred  that  the  company  is  placed  under  any  obliga- 
tion whatever  to  supply  any  inhabitant  of  the  city  with  water."  .  .  . 

It  must  then  be  conceded  that  the  defendant  is  engaged  in  a  business 
of  a  public  and  not  of  a  private  nature,  like  that  of  ordinar\'  corpora- 
tions engaged  in  the  manufacture  of  articles  for  sale,  and  that  the  right 


HAUGEN   V.   ALBINA   LIGHT   AND    WATER   CO.  97 

to  dig  up  the  streets,  and  place  therein  pipes  or  mains  for  the  purpose 
of  conducting  water  for  the  supply  of  the  city  and  its  inhabitants,  ac- 
cording to  the  express  purpose  of  its  incorporation,  and  the  business  in 
which  it  is  engaged,  is  a  franchise,  the  exercise  of  which  could  onl}'  be 
granted  bj^  the  State,  or  the  municipality  acting  under  legislative  au- 
thority. In  such  case,  how  can  the  defendant,  upon  the  tender  of  the 
proper  compensation,  refuse  to  supply  water  without  distinction  to  one 
and  all  whose  property  abuts  upon  the  street  in  which  its  pipes  are 
laid  ?  The  defendant  company  was  organized  to  supply  water  to  the 
city  and  its  inhabitants,  and  the  franchise  granted  b}'  the  city  authori- 
ties was  the  means  necessarj'  to  enable  it  to  effect  that  purpose.  With- 
out the  franchise,  the  object  for  which  the  company  was  incorporated 
would  fail  and  come  to  naught.  It  could  not  carry  on  the  business  of 
supplying  the  city  and  its  inhabitants  with  water  without  authority  from 
the  city  to  dig  its  streets  and  lay  pipes  therein  for  conducting  or  dis- 
tributing water  for  public  and  private  use.  It  was  not  organized  to  lay 
pipes,  but  to  supply  water,  and  the  grant  was  to  enable  it  to  do  so 
and  thereby  effect  the  public  purpose  contemplated. 

When  the  defendant  incorporated  to  carry  on  such  a  business,  we 
may  reasonably  assume  that  it  was  with  the  expectation  of  receiving  a 
franchise  from  the  cit}',  which,  when  conferred,  it  would  undertake  to 
carr}'  on  according  to  the  purposes  for  which  it  was  organized.  By  its 
acceptance  of  the  grant,  under  the  terms  of  its  incorporation,  it  as- 
sumed the  obligation  of  supplying  the  city  and  its  inhabitants  with 
water  along  the  line  of  its  mains.  It  could  not  dig  up  the  streets  and 
la}'  pipes  therein  for  conducting  water,  except  to  furnish  the  city  and  its 
inhabitants  with  water.  That  was  the  purpose  for  which  it  became  a 
corporation,  and  the  grant  of  the  city  was  to  enable  it  to  carry  it  into 
effect.  And  "  if  the  supplying  of  a  city  or  town  with  water,"  as  Van 
Syckel,  J.,  said,  "  is  not  a  public  purpose,  it  is  diflBcult  to  conceive  of 
any  enterprise  intrusted  to  a  private  corporation  that  could  be  classed 
under  that  head." 

We  discover  no  error,  and  the  judgment  must  be  affirmed  for  the 
plaintiff;  making  the  writ  peremptory. 


98  8L0SSEB   V.   SALT   RIVER  VALLEY   CANAL  CO. 

SLOSSER  V.  SALT  RIVER  VALLEY  CANAL  CO. 

Supreme  Court  of  Arizona,  1901. 

[65  Pac.  Rep.  332.1] 

Sloan,  J.  .  .  .  The  proof  shows  that  plaintiff  and  his  grantors  have 
cultivated  the  land  which  he  now  owns  from  1871  to  1880,  under  vari- 
ous canals  in  which  plaintiff  and  his  grantors  were  the  owners  of  water 
rights.  Since  1880,  with  the  exception  of  one  or  two  j'ears,  whatever 
water  plaintiff  has  had  for  the  irrigation  of  his  land  has  been  obtained 
from  the  Salt  River  Valley  canal.  The  circumstances  under  which 
plaintiff  changed  his  use  from  the  Farmers'  canal  to  the  Salt  River 
Valley  canal  are  shown  to  have  been  the  difficulty  of  maintaining  the 
Farmers'  canal,  and  the  scarcit}'  of  water  at  its  head,  due  to  the  diver- 
sion by  the  defendant  company  and  other  companies  owning  canals 
which  headed  further  up  the  river.  It  is  contended  by  the  defendant 
that  the  abandonment  of  the  Farmers'  canal  by  its  water-right  holders, 
including  the  plaintiff,  operated  as  an  abandonment  of  their  appropria- 
tions of  water.  Whatever  may  be  the  status  of  other  water-right 
holders  in  the  Farmers'  canal,  the  defendant  compan3',  as  late  as 
1890,  in  the  suit  known  as  "Wormser  against  the  Salt  River  Valley 
Canal  Compan}',"  tried  in  the  court  below,  which  case  involved  the 
rights  of  various  canals  in  the  Salt  River  Valley  to  divert  the  water 
from  Salt  River,  acknowledged  plaintiff's  right  as  an  appropriator  of 
water,  by  setting  up  such  right,  introducing  proof  to  the  same,  and 
obtaining  an  adjudication  in  its  favor,  sustaining  its  right  to  divert 
and  carry  water  necessary'  for  the  irrigation  of  plaintiff's  lands.  If 
plaintiff  had  not  lost  his  right  as  an  appropriator  of  water  by  obtaining 
water  from  the  Salt  River  canal  from  1880  to  1890,  it  cannot  be  ver}' 
well  contended  that  under  the  same  circumstances  his  right  was  lost  to 
him  between  1890  and  1896,.  when  he  was  first  denied  the  right  of  ob- 
taining water  from  the  defendant's  canal.  Forfeitures  are  not  favored 
in  law,  and  we  hold,  therefore,  that  the  circumstances  under  which  plain- 
tiff ceased  to  obtain  water  from  the  Farmers'  canal,  and  his  use  of  water 
from  the  defendant's  canal,  coupled  with  the  acknowledgment  as  late 
as  1890  by  the  defendant  compan}'  of  his  right  as  an  appropriator,  do 
not  show  such  forfeiture,  but,  on  the  contrar}-,  establisk  his  status  as  a 
valid  appropriator  of  water  from  the  Salt  River.  We  do  not  hold  that 
the  plaintiff  has  acquired  an}'  contractual  right  to  the  service  of  said 
company  which  would  entitle  him  to  compel  from  said  company  the 
delivery  of  water  for  the  irrigation  of  his  lands,  by  virtue  of  such 
contractual  relation,  whenever  the  compan}'  confines  its  diversion  and 
delivery  of  water  to  its  stockholders  to  be  used  by  the  latter  upon  lands 

'  This  case  is  abridged.  —  Ed. 


SLOSSER  V.  SALT  RIVER  VALLEY  CANAL  CO.  99 

owned  or  possessed  by  them.  On  the  other  hand,  we  hold  that  his 
rights  in  the  premises,  so  far  as  the  defendant  company  is  concerned, 
rest  upon  the  fact  that  the  defendant  was  not,  at  the  time  of  plaintiff's 
application  for  water,  confining  its  service  to  supplying  its  water-right 
holders  for  the  irrigation  of  lands  which  they  owned  or  possessed.  In 
determining,  however,  whether  plaintiff,  as  against  others  similarly 
situated,  so  far  as  the  company  is  concerned,  was  entitled  to  the  service 
of  the  company,  under  the  law  of  prior  appropriation,  and  the  duty  of 
water  companies  which  occupy  the  relation  of  public  agency  in  the 
diversion  and  carriage  of  water,  we  must  look  to  the  date  of  his  ap- 
propriation, and  therefore  his  priority  of  right.  We  think  the  denial 
by  the  defendant  of  plaintiff's  application,  under  the  circumstances 
shown  by  the  record,  was  unwarranted,  and  he  should  have  been  ac- 
corded this  right  in  preference  to  the  holders  of  leases  from  the  share- 
holders for  use  upon  lands  not  owned  or  possessed  by  said  shareholders, 
who  were  subsequent  appropriators. 

The  importance  of  the  questions  presented  by  the  record  is  such  that 
we  feel  called  upon  to  define  with  certainty  the  position  we  have  taken, 
and  to  this  end  to  give  a  brief  resume  of  the  points  decided,  with  a 
statement  of  those  which  we  do  not  decide,  which  grow  out  of  a  con- 
sideration of  the  points  decided  in  a  collateral  way,  although  not  neces- 
sary in  arriving  at  the  result  reached :  We  hold  that  the  ownership 
and  possession  of  arable  and  irrigable  land  are  essential,  under  the 
statutes,  for  the  acquisition  of  the  right  of  appropriation  of  water  from 
a  public  stream  for  purposes  of  irrigation.  We  hold  that  a  corpora- 
tion not  the  owner  or  possessor  of  arable  and  irrigable  land  may  law- 
fully construct  a  dam,  canal,  or  other  conduit  of  water,  and  divert  from 
such  stream  water  for  purposes  of  irrigation,  but  that  in  so  doing  it 
becomes  in  no  sense  an  appropriator  or  owner  of  the  water  so  diverted. 
Its  status  is  that  of  either  a  private  or  public  agency,  depending  upon 
whether  its  diversion  is  for  the  purpose  of  supplying  owners  or  posses- 
sors of  arable  and  irrigable  land  with  whom  it  has  fixed  contractual 
relations,  binding  it  to  perform  such  service,  or  whether  its  purpose  or 
practice  be  to  supply  owners  or  possessors  of  such  land  who  are  not  its 
water-right  holders,  or  with  whom  it  has  not  bound  itself  by  contract  to 
permanently  render  such  service.  If  it  confines  its  service  as  the  pri- 
vate agent  of  certain  appropriators,  it  cannot  be  compelled  to  render  ser- 
vice to  others.  On  the  other  hand,  if  it  undertakes  to  and  does  divert 
and  carry  water  for  the  use  of  consumers  with  whom  it  is  not  bound 
by  such  contracts,  and  hence  becomes  a  public  agency,  it  cannot,  undei 
the  law,  discriminate  by  giving  preference  otherwise  than  with  due  re- 
gard to  priority  of  appropriation.  We  further  hold  that  a  shareholder^ 
in  such  a  company,  who  is  also  a  water-right  holder  by  virtue  of  his 
ownership  of  such  share  of  stock  and  the  ownership  or  possession  of 
arable  and  irrigable  land  irrigated  by  means  of  such  water  right,  may 
not  assign  such  water  right  to  another,  to  be  used  upon  lands  which  the 
assignor  does  not  own  or  possess,  for  any  particular  season,  so  as  to 


100  SLOSSER  V.   SALT  BIVER  TALLEY   CANAL  CO. 

confer  upon  the  assignee  his  priority  of  right,  and  that  such  company 
does  not  possess  the  right  to  discriminate  in  favor  of  such  holders,  as 
against  other  appropriators  of  water  under  its  canal,  who  were  prior 
in  right  In  other  words,  a  water  right,  to  be  effective,  must  be  at- 
tached to  and  pertain  to  a  particular  tract  of  land,  and  is  in  no  sense  a 
"  floating  "  right.  We  do  not  wish  to  be  understood  as  holding  that  a 
water  right  which  is  so  attached  becomes  inseparable  from  such  land. 
That  is  to  sa}-,  we  do  not  hold  that  a  prior  appropriator  of  water  may 
not  convey  his  prior  appropriation  to  another,  without  the  land,  so  as 
to  confer  upon  his  vendee  of  such  water  right  all  the  rights  which  the 
vendor  may  possess,  provided  such  vendee  makes  a  beneficial  use  of 
such  water  right  upon  lands  which  he  owns  or  possesses.  But  we  de- 
sire to  be  understood  simply  as  holding  that,  so  long  as  a  water  right 
is  attached  to  a  particular  piece  of  land,  it  cannot  be  made  to  do  duty 
to  such  land,  and  as  well  to  other  land  not  owned  or  possessed  by  such 
water-right  holder,  at  the  will  or  option  of  the  latter.  In  the  briefs,  as 
well  as  in  the  very  able  and  elaborate  argument  made  by  counsel  for  ap- 
pellee, the  right  of  shareholders  to  do  this,  and  the  duty  of  the  defend- 
ant company  to  recognize  the  right,  have  been  strenuously  argued.  In 
this,  however,  we  think  counsel  confuses  the  right  of  an  appropriator 
to  sell  or  transfer  by  conveyance  his  water  rights  to  another  with  the 
assumed  right  in  question.  To  recognize  the  right  of  a  prior  appro- 
priator to  lease  his  water  right  independent  of  his  land  would,  as  we 
conceive,  be  subversive  of  the  underlying  principle  of  our  water- right 
law.  The  right  of  alienation  of  a  water  right  is  one  which  is  based 
upon  the  general  right  of  property,  and  arises  out  of  the  necessity,  in 
order  that  injustice  may  not  be  done  to  the  owner,  of  permitting  such 
alienation,  for  the  reason  that  it  frequently  happens,  through  no  fault 
of  the  owner,  and  by  the  operation  of  natural  laws,  that  land  to  which 
water  rights  have  been  attached  becomes  unsuitable  for  cultivation. 
Floods  frequently  wash  away  and  destroy  farming  lands,  or  leave  de- 
posits of  coarse  gravel  and  bowlders  upon  them ;  and  other  natural 
causes  frequently  render  such  lands  not  only  unprofitable,  but  impos- 
sible of  irrigation  and  cultivation.  Natural  justice,  therefore,  is  sub- 
served by  recognizing  the  right  of  a  water-right  holder  to  change  his 
appropriation,  under  such  circumstances,  to  lands  capable  of  profitable 
cultivation,  or  to  sell  his  right  to  another,  to  be  used  by  the  latter  for  a 
beneficial  use  recognized  by  the  statute.  As  the  law  must  be  certain 
and  general  in  the  matter  of  the  right  of  conveyances,  to  admit  the 
right  of  alienation  under  some  circumstances  must  be  the  admission 
of  that  right  under  any  and  all  circumstances.  There  was  no  principle 
of  natural  justice  or  of  necessity  that  required  the  recognition  of  the 
right  of  a  water-right  holder  to  lease  his  water  right  for  particular  sea- 
sons, while  retaining  the  land  to  which  it  is  attached ;  for  so  long  as 
he  may  use  his  right  in  the  cultivation  of  such  land  he  enjoys  all  that 
the  law  confers  in  the  first  instance  by  virtue  of  his  appropriation.  In 
considering  our  peculiar  statutes,  it  is  well  to  bear  in  mind  the  fact 


SLOSSER   V.   SALT   RIVER   VALLEY   CANAL   CO.  101 

that  the  only  expression  in  onr  statutes  upon  the  subject  of  priority  of 
rights  among  appropriators  from  a  common  source  for  agricultural  pur- 
poses is  found  in  paragraph  3215  of  the  Revised  Statutes,  which  reads  : 
"  That  during  years  when  a  scarcity  of  water  shall  exist,  owners  of 
fields  shall  have  precedence  of  the  water  for  irrigation  according  to 
the  dates  of  their  respective  titles  or  their  occupation  of  the  lands 
either  by  themselves  or  their  grantors,  the  oldest  titles  shall  have  pre- 
cedence always."  And,  while  this  section  applies  primarily  to  public 
acequias,  it  is  significant,  taken  in  connection  with  paragraph  3201,  and 
negatives  the  idea  that  priority  of  appropriation  is  a  mere  personal 
right,  which  may  be  enjo3'ed  otherwise  than  by  its  application  upon 
particular  lands.  We  hold  further,  therefore,  that  the  defendant  com- 
pany, by  adopting  and  continuing  the  practice  of  supplying  water  to 
others  than  its  water-right  holders  owning  or  possessing  arable  and 
irrigable  land,  not  being  itself  an  appropriator  of  the  water  carried, 
or  the  owner  thereof,  and  dealing,  as  it  was,  with  public  property*,  be- 
came a  public  agency  to  the  extent  that  plaintiff  at  the  time  he  made 
his  application  for  water,  although  not  a  water-right  holder  of  the  com- 
pan}',  was  entitled,  upon  the  payment  of  the  charge  for  similar  service 
made  to  other  non-water-right  holders,  whether  holders  of  orders  from 
water-right  holders  or  not,  to  have  delivered  upon  his  lands  water  suf- 
ficient for  the  irrigation  thereof,  in  preference  to  other  non-water-right 
holders  whose  appropriations  were  subsequent  in  time,  and  that  he  is 
entitled  to  this  service  upon  the  same  terms  and  conditions,  so  long  as 
the  defendant  company  continues  to  supply  water  to  consumers  under 
its  canal  who  are  not  its  water-right  holders,  whether  upon  the  order 
of  the  latter  or  not,  and  thus  continues  to  assume  the  status  of  a  pub- 
lic agency  in  the  diversion  and  carriage  of  water.  We  do  not  hold 
that  the  water-right  holders  in  the  Salt  River  canal  are  upon  a  parity 
of  right  with  appellant  and  other  non-water-right  holders  similarly 
situated  to  the  service  of  the  canal  and  to  the  water  it  diverts  and  car- 
ries. We  assert  that  the  canal  company  owes  a  first  dut}'  to  supply 
the  needs  and  requirements  of  the  water-right  holders.  It  is  the  sur- 
plus water  remaining  in  the  canal  after  this  is  done  which  is  lawfully 
available  to  the  latter  class,  and  which  must  be  disposed  of  by  the  com- 
pany in  the  manner  herein  decided.  Under  the  circumstances  shown 
by  the  record,  we  hold  that  the  appellant  was  wrongfully  denied  water 
for  the  irrigation  of  his  lands  at  the  time  he  made  his  application,  in 
May,  1899  ;  it  being  shown  that  the  appellee  company  during  that  sea- 
son was  engaged  in  supplying  other  consumers  within  the  flow  of  its 
canal  who  were  non-water-right  holders,  and  thus,  confessedly,  was 
diverting  and  carrj'ing  water  in  its  canal  in  excess  of  that  needed  and 
required  by  its  water-right  holders  for  the  irrigation  of  lands  to  which 
their  water  rights  were  attached,  and  it  being  further  shown  that  ap- 
pellant had  the  superior  right  to  the  use  of  such  surplus  water  over 
other  non-water-right  holders  thus  supplied,  by  virtue  of  his  ownership 
and  possession  of  lands  having  an  older  right  of  appropriation.     We 


102  SLOSSER   V.   SALT   RIVER  VALLEY   CANAL   CO. 

further  hold  that,  so  long  as  appellant  continues  to  be  the  owner  or 
possessor  of  said  lands,  upon  paying  the  usual  and  reasonable  charge 
therefor,  he  is  entitled  to  the  same  service,  whenever  and  so  long  as 
the  appellee  company  undertakes  to  and  does  divert  and  carry  in  its 
canal  water  from  Salt  River  in  excess  of  that  needed  and  required  by 
its  water-right  holders  for  the  irrigation  of  lands  owned  or  possessed 
by  such  water-right  holders,  and  to  which  such  water  rights  are 
attached.  The  judgment  of  the  trial  court  is  reversed,  and  a  judgment 
and  decree  will  be  entered  in  consonance  with  this  opinion. 

Do  AN,  J.,  concurs. 

Davis,  J.     I  do  not  concur  in  the  opinion  of  the  court  in  this  case. 


ANONYMOUS. 
King's  Bench,  England,  1690. 

[2   T.  R.  3.1] 

Per  Curiam.     An  action  lies  against  a  common  carrier  for  refusing 
to  carry  money,  if  he  do  not  assign  a  particular  reason  for  it. 

1  Bat  see  Citizen's  Bank  v.  Nantucket  St,  Co.,  2  Story,  16  ;  Fay  v.  Stearnes  New 
World,  1  Cal.  348 ;  Mechanics  Nt.  Bk.  v.  Gordon,  5  La.  Ann.  604 ;  Pender  v.  Robbing, 
6  Jones,  207.  If,  however,  a  regnlar  profession  has  been  made  to  carry  valuables,  it  ia 
common  carriage.  Hellraan  v.  HoUaday,  1  Woolw.  365 ;  Kirkland  v.  Montgomery 
1  Swan,  452.  *         "" 


JOHNSON   V.   MIDLAND   RAILWAY  COMPANY.  103 


JOHNSON  V.  MIDLAND  RAILWAY  COMPANY. 
Court  of  Exchequer,  England,  1849. 

[4  Exch.  367.1] 

Parke,  B.  They  were  not  bound  to  carry  the  coal  unless  they  had 
convenience  for  that  purpose :  Jackson  v.  Rogers,  2  Show.  327 ;  and 
the  evidence  was,  that  they  could  not  carry  coal  without  giving  up  the 
passenger  traffic.  In  order  to  entitle  everj'body  to  call  upon  them  to 
carry  coal  from  Melton  Mowbray  to  Oakham,  they  must  have  publicly 
professed  to  do  so.  The  question  is  irrespective  of  the  Act  of  Parlia- 
ment, which  only  enables  them  to  be  carriers,  leaving  them  at  liberty  to 
exercise  their  common  law  right  of  carrying  any  particular  description 
of  goods  only,  from  and  to  particular  places." 

1  In  this  interjection  by  Parlie,  B.,  at  the  argument  all  the  points  made  in  the  final 
decision  of  the  case  were  foreshadowed.  —  Ed. 

"  Accord:  Leonard  v.  American  Express  Co.,  26  Upp.  Can.  Q.  B.  533. 


104  TUNNEL   &  SHORT  V.    PETTIJOHN. 


TUNNEL   &   SHORT  v.  PETTIJOHN. 
Superior  Court  of  Delaware,  1836. 

[2  Ilarv.  48.] 

Capias  Case.  The  proof  established  that  defendant  was  in  the  habit 
of  hauling  for  hire,  goods  landed  at  Milton,  belonging  to  merchants  in 
Georgetown ;  but  one  of  these  merchants  testified,  that  the  defendant 
had  refused  to  carry  molasses  for  him  on  account  of  its  bulk  and 
weight,  and  that  he  had  never  known  him  to  carry  molasses.  The 
hogshead  in  question  was  brought  from  Philadelphia,  for  Tunnel  and 
Short,  by  Captain  Parker,  and  delivered  on  the  wharf  at  Milton  ;  when, 
defendant's  cart  being  there,  it  was  placed  by  Parker's  hands  and  de- 
fendant's servant  in  his  cart.  While  placing  it,  the  hogshead  rolled 
and  fell  from  the  cart,  and  the  contents  were  spilled  upon  the  ground 
and  lost. 

The  Court  said,  to  enable  the  plaintiff  to  recover,  he  must  prove 
either  a  special  contract  and  undertaking  by  the  defendant  to  carry 
this  hogshead  of  molasses,  or  a  general  usage ;  that  is,  that  the  de- 
fendant was  a  common  carrier  of  goods,  including  goods  of  this  de- 
scription. A  general  usage  to  carrj'  goods  other  than  molasses  is 
proved  in  this  case ;  but  so  far  as  there  is  proof  of  usage,  it  is  against 
the  idea  of  the  defendant's  general  undertaking  to  carry  molasses. 
And  there  seems  to  be  good  reason  for  distinguishing  between  this  and 
other  kinds  of  goods,  on  account  of  its  bulk  and  weight,  and  it  also 
appears  that  the  defendant's  cart  is  too  small  for  such  freight. 

The  other  is  a  more  difficult  question,  as  to  when  the  defendant's 
liability  commenced,  supposing  him  to  be  liable.  Was  the  delivery  to 
him  complete,  by  showing  him  the  hogshead  on  the  wharf,  or  was  the 
captain  of  the  vessel  bound  to  place  it  in  the  cart.  But  the  point  is 
unnecessary,  as  we  are  of  opinion  that  the  defendant  is  not  liable, 
under  the  proof  in  the  case,  on  the  other  ground. 

Nonsuit  ordered. 


KANSAS   PACIFIC   K.    CO.  V.   NICHOLS,   KENNEDY   &  CO.  105 


KANSAS  PACIFIC  RAILWAY  COMPANY  v.  NICHOLS, 
KENNEDY  &   CO. 

Supreme  Court  of  Kansas,  1872. 

[^  Kans.  235.1] 

Action  brought  by  Nichols,  Kennedy  &  Co.  to  recover  damages  for 
cattle  lost  by  the  Railway  Company  alleging  it  to  be  a  common  carrier 
of  cattle. 

Valentine  J.  At  common  law  no  person  was  a  common  carrier  of 
any  article  unless  he  chose  to  be,  and  unless  he  held  himself  out  as 
such ;  and  he  was  a  common  carrier  of  just  such  articles  as  he  chose 
to  be,  and  no  others.  If  he  held  himself  out  as  a  common  carrier  of 
silks  and  laces,  the  common  law  would  not  compel  him  to  be  a  common 
carrier  of  agricultural  implements  such  as  plows,  harrows,  etc. ;  if  he 
held  himself  out  as  a  common  carrier  of  confectionery  and  spices,  the 
common  law  would  not  compel  him  to  be  a  common  carrier  of  bacon, 
lard,  and  molasses.  Funnel  v.  Pettijohn,  2  Harrington  (Del.),  48. 
And  it  seems  to  us  clear  beyond  all  doubt,  that  if  any  person  had  in 
England  prior  to  the  year  1607  held  himself  out  as  a  common  carrier 
of  cattle  and  live  stock  by  land,  the  common  law  would  have  made  him 
such.  If  so,  where  is  the  valid  distinction  that  is  attempted  to  be  made 
between  the  carrying  of  live  stock  and  the  carrying  of  any  other  kind 
of  personal  property?  The  common  law  never  declared  that  certain 
kinds  of  property  only  could  be  carried  by  common  carriers,  but  it  per- 
mitted all  kinds  of  personal  property  to  be  so  carried.  At  common 
law  any  person  could  be  a  common  carrier  of  all  kinds,  or  any  kind, 
and  of  just  such  kinds  of  personal  property  as  he  chose,  no  more,  nor 
less.  Of  course,  it  is  well  known  that  at  the  time  when  our  common 
law  had  its  origin,  that  is,  prior  to  the  year  1607,  railroads  had  no  ex- 
istence. But  when  they  came  into  existence  it  must  be  admitted  that 
they  would  be  governed  by  the  same  rules  so  far  as  applicable  which 
govern  other  carriers  of  property.  Therefore  it  must  be  admitted  that 
railroads  might  be  created  for  the  purpose  of  carrying  one  kind  of  prop- 
erty only,  or  for  carrying  many  kinds,  or  for  carrying  all  kinds  of 
property  which  can  be  carried  by  railroads,  including  cattle,  live  stock, 
etc.  In  this  state  it  must  be  presumed  that  the}'  were  created  for  the 
purpose  of  carrying  all  kinds  of  personal  property.  It  can  hardly  be 
supposed  that  they  were  created  simply  for  the  purpose  of  being  car- 
riers of  such  articles  only  as  were  carried  by  common  carriers  under  the 
common  law  prior  to  the  year  1607;  for  if  such  were  the  case  they 
would  be  carriers  of  but  very  few  of  the  innumerable  articles  that  are 

1  Only  an  extract  is  printed.  —  Ed. 


106  LEVI  V.   LYNN   AND  BOSTON  RA.ILROAD   CO. 

now  actually  carried  by  railroad  companies.  And  it  can  hardly  be 
supposed  that  they  were  created  for  the  mere  purpose  of  taking  the 
place  of  pack-horses,  or  clums}'  wagons,  often  drawn  by  oxen,  or  such 
other  primitive  means  of  carriage  and  transportation  as  were  used  in 
England  prior  to  that  3ear.  Railroads  are  undoubtedly  created  for  the 
purpose  of  carrying  all  kinds  of  property  which  the  common  law  would 
have  permitted  to  be  carried  by  common  carriers  in  any  mode,  either 
by  land  or  water,  which  probably  includes  all  kinds  of  personal  prop- 
erty. Our  decision  then  upon  this  question  is,  that  whenever  a  rail- 
road company  receive  cattle  or  live  stock  to  be  transported  over  their 
road  from  one  place  to  another  such  company  assume  all  the  reponsi- 
bilities  of  a  common  carrier  except  so  far  as  such  responsibilities 
may  be  modified  by  special  contract.^ 


LEVI  V.   LYNN  AND  BOSTON  RAILROAD  CO. 

SUPBEMJB   COUBT  OF  MASSACHUSETTS,    1865. 
[11  Allen,  300.2] 

Tort  against  a  street  railway  corporation  to  recover  the  value  of  a 
box  of  merchandise. 

At  the  trial  in  the  Superior  Court,  before  Brigham,  J.,  the  plaintiff 
introduced  evidence  tending  to  show  that  on  the  8th  of  Julj',  1864,  she 
placed  upon  the  front  platform  of  one  of  the  defendants'  cars  in  Boston 
a  box  of  merchandise,  and  then  took  her  seat  within  the  car  to  go  to 
Chelsea,  and  paid  the  conductor  her  fare  and  also  a  certain  sum  as 
compensation  for  carrying  the  box  to  Chelsea.  She  was  also  allowed 
to  introduce  evidence,  under  objection,  tending  to  show  that  two  other 
persons  had  at  other  times  paid  to  conductors  of  the  defendants'  cars 
money  for  the  conveyance  of  merchandise  to  Chelsea  in  addition  to  their 
own  fare,  with  the  knowledge  of  the  superintendent  of  the  railroad. 

The  above  are  all  the  facts  recited  in  the  bill  of  exceptions. 

Colt,  J.  The  plaintiff  resorted  to  the  usual  and  proper  mode  of 
proving  that  the  defendants  had  assumed  the  business  of  common 
carriers  of  merchandise  upon  their  cars,  and  produced  evidence  that 
two  other  persons  had  paid  money  at  other  times  to  the  defendants' 

'  Everywhere  id  the  United  States  carriage  of  cattle  is  considered  common  car- 
riage except  in  Michigan.    See  Lake  Shore  L  M.S.  Ry.  v.  Perkins,  25  Mich.  329.  —  Ed. 
*  This  case  is  abridged.  —  Ed. 


COUP  V.  WABASH,   ST.   LOUIS   AND   PACIFIC   EAILWAY  CO.       107 

conductors  for  the  transportation  of  merchandise,  with  a  knowledge  of 
the  superintendent  of  the  road.  For  an3'thing  that  appears  to  the 
contrary  in  the  exceptions,  it  maj'  liave  been  proved  that  these  two 
other  persons  had  so  employed  the  defendants  in  repeated  instances. 
The  evidence  was  entirely  proper  to  go  to  the  jury,  and,  in  the  absence 
of  an3'thing  to  control  or  contradict  it,  would  be  sufficient  to  warrant 
them  in  finding  that  the  defendants  had  assumed  to  be  and  were  com- 
mon carriers,  when  the  plaintiff's  box  was  delivered  to  them  for  trans- 
portation. 

The  jury  were  in  eflfect  instructed  that,  if  they  found  that  the  de- 
fendants were  common  carriers,  and  that  the  plaintiff's  box  was  de- 
livered to  them  for  transportation,  and  the  price  of  transportation  paid 
by  her,  they  would  be  responsible  for  the  delivery  of  the  box  at  its 
place  of  destination.  And  these  instructions  were  sufficiently  correct 
and  accurate. 

If  the  defendants  were  proved  to  be  common  carriers  the  law  sup- 
plies the  proof  of  the  contract,  so  far  as  regards  the  extent  and  degree 
of  liability,  and,  the  bailor  having  proved  delivery  to  a  carrier  and  loss, 
the  burden  is  on  the  carrier  to  discharge  himself  from  liability,  within 
the  exceptions  which  the  law  creates.  No  question  seems  to  have  been 
raised  or  instructions  required  in  regard  to  the  limit  of  the  defendants' 
liability  in  this  case,  if  regarded  as  common  carriers.  Clark  v.  Barn- 
well, 12  How.  272  ;  Alden  v.  Pearson,  3  Gray,  342. 

The  question  whether  the  plaintiff  was  herself  negligent,  in  placing 
her  property  on  the  front  platform  of  the  car,  and  the  point  that  she 
did  not  in  fact  part  with  the  custody  of  the  box,  and  so  cannot  charge 
the  defendants  with  her  loss,  are  not  open  to  the  defendants  upon  these 
exceptions,  for  it  does  not  appear  that  any  such  question  was  raised  or 
point  made  at  the  trial.  Brigham  v.  Wentworth,  11  Cush.  123  J  Re«d 
V.  Call,  5  Cush.  14 ;  Moore  v.  Fitchburg  Railroad,  4  Gray,  465. 

Exceptions  overruled? 


COUP  V.  WABASH,  ST.  LOUIS  AND  PACIFIC  RAILWAY  CO 

Supreme  Court  of  Michigan,  1885. 

[56  Mich.  111.2] 

Campbell,  J.  Plaintiff,  who  is  a  circus  proprietor,  sued  defendant 
as  a  carrier  for  injuries  to  cars  and  equipments,  and  to  persons  and 
animals  caused  by  a  collision  of  two  trains  made  up  of  his  circus  cars, 
while  in  transit  through  Illinois.     The  court  below  held  defendant  to 

1  Compare:  Knox  v.  Russ,  14  Ala.  249;  Adams  Express  Co.  r.  Cressap,  6  Bush, 
572 ;  Clark  v.  Rochester,  &c.  R.  R.,  14  N.  Y.  570 ;  Spears  v.  Lake  Shore  &  M.  S.  K. 
R.,  67  Barb.  513 ;  Kemp  v.  Coughton,  11  Johns.  107.  — Ed. 

2  Opinion  only  is  printed.  —  Ed. 


108       COUP  V.  WABASH,  ST.   LOUIS  AND  PACIFIC  RAILWAY  CO. 

the  common-law  liability  of  a  common  carrier  and  held  there  was  no 
avoiding  liability  by  reason  of  a  special  contract  under  which  the  trans- 
portation was  directed.  The  principal  questions  raised  on  the  trial 
arose  out  of  discussions  concerning  the  nature  of  defendant's  employ- 
ment, and  questions  of  damage.  Some  other  points  also  appeared.  In 
the  view  which  we  take  of  the  case  the  former  become  more  important, 
and  will  be  first  considered. 

Plaintiff  had  a  large  circus  property,  including  horses,  wild  animals, 
and  various  paraphernalia,  with  tents  and  appliances  for  exhibition. 
He  owned  special  cars  fitted  up  for  the  carriage  of  performers  and 
propert}',  in  which  the  whole  concern  was  moved  from  place  to  place 
for  exhibition. 

The  defendant  company  has  an  organized  connection,  under  the  same 
name,  with  railways  running  between  Detroit  and  St  Louis,  through 
Indiana  and  Illinois.  On  the  25th  of  July,  1882,  a  written  contract 
was  made  at  St.  Louis  by  defendant's  proper  agent  with  plaintiff  to  the 
following  effect.  Defendant  was  to  furnish  men  and  motive  power  to 
transport  the  circus  by  train  of  one  or  more  divisions,  consisting  of 
twelve  flat,  six  stock,  one  elephant,  one  baggage,  and  three  passenger 
coaches,  being  in  all  twentj'-three  cars  from  Cairo  to  Detroit  with  priv- 
ilege of  stopping  for  exhibition  at  three  places  named,  fixing  the  time 
of  starting  from  each  place  of  exhibition,  leaving  Cairo  August  19, 
Delphi  August  21,  Columbia  City  August  22,  exhibiting  at  Detroit 
August  23,  and  then  to  be  turned  over  to  the  Great  Western  Transfer 
Line  boats.  Plaintiff  was  to  furnish  his  own  cars,  and  two  from  an- 
other company  at  Cairo,  in  good  condition  and  running  order.  It  was 
agreed  that  "for  the  use  of  the  said  machinery,  motive  power  and 
men  and  the  privileges  above  enumerated,  plaintiff  should  pay  8400  for 
the  run  to  Delphi,  $175  to  Columbia  Cit}',  and  $225  to  Detroit,  each 
sum  to  be  paid  before  leaving  each  point  of  departure." 

It  was  further  expressl}-  stipulated  that  the  agreement  was  not  made 
with  defendant  as  a  carrier,  but  merel}'  "  as  a  hirer  of  said  machinery, 
motive  power,  and  right  of  way  and  the  men  to  move  and  work  the 
same  ;  the  same  to  be  operated  under  the  management,  direction,  orders, 
and  control  of  said  party  of  the  second  part  [plaintiff]  or  his  agent,  as 
in  his  possession,  and  by  means  of  said  employes  as  his  agents,  but  to 
run  according  to  the  rules,  regulations,  and  time-tables  of  the  said  party 
of  the  first  part." 

The  contract  further  provides  that  defendant  should  not  be  responsi- 
ble for  damage  by  want  of  care  in  the  running  of  the  cars  or  otherwise, 
and  for  stipulated  damages  in  case  of  any  liability.  It  also  provided 
for  transporting  free  on  its  passenger  trains  two  advertising  cars  and 
advertising  material. 

The  plaintiff's  cars  were  made  up  in  two  trains  at  Cairo,  and  divided 
to  suit  instructions.  The  testimony  tended  to  prove  that  two  cars  were 
added  to  the  forward  train  bj'  order  of  plaintiff's  agent,  but  in  the  view 
we  take  the  question  who  did  it  is  not  important.     The  forward  train 


COUP  V.   WABASH,   ST.   LOUIS   AND   PACIFIC   RAILWAY  CO.        109 

was  for  some  cause  on  which  there  was  room  for  argument  brought  to 
a  standstill,  and  run  into  by  the  other  train,  and  considerable  damage 
done  by  the  collision. 

Defendants  insisted  that  plaintiff  made  out  no  case  for  recovery,  and 
that  the  contract  exempted  them.  Plaintiflf  claimed,  and  the  court  be- 
low held  the  exemption  incompetent. 

Unless  this  undertaking  was  one  entered  into  by  the  defendant  as  a 
common  carrier,  there  is  very  little  room  for  controvers}'.  The  price 
was  shown  to  be  onl}'  ten  per  cent  of  the  rates  charged  for  carriage, 
and  the  whole  arrangement  was  peculiar.  If  it  was  not  a  contract  of 
common  carriage,  we  need  not  consider  how  far  in  that  character  con- 
tracts of  exemption  from  liability  may  extend.  In  our  view  it  was  in 
no  sense  a  common  carrier's  contract,  if  it  involved  any  principle  of  the 
law  of  carriers  at  all. 

The  business  of  common  carriage,  while  it  prevents  any  right  to  re- 
fuse the  carriage  of  property  such  as  is  generally  carried,  implies, 
especially  on  railroads,  that  the  business  will  be  done  on  trains  made 
up  by  the  carrier  and  running  on  their  own  time.  It  is  never  the  duty 
of  a  carrier,  as  such,  to  make  up  special  trains  on  demand,  or  to  drive 
such  trains  made  up  entirely  bj^  other  persons  or  by  their  cars.  It  is 
not  important  now  to  consider  how  far,  except  as  to  owners  of  goods 
in  the  cars  forwarded,  the  reception  of  cars  loaded  or  unloaded,  in- 
volves the  responsibility  of  carriers  as  to  the  owners  of  the  cars  as 
such.  The  duty  to  receive  cars  of  other  persons,  when  existing,  is 
usuall}'  fixed  by  the  railroad  laws,  and  not  by  the  common  law.  But  it 
is  not  incumbent  on  companies  in  their  duty  as  common  carriers  to 
move  such  cars  except  in  their  own  routine.  They  are  not  obliged  to 
accept  and  run  them  at  all  times  and  seasons,  and  not  in  the  ordinary 
course  of  business. 

The  contract  before  us  involves  very  few  things  ordinarily  undertaken 
by  carriers.  The  trains  were  to  be  made  up  entirely  of  cars  which  be- 
longed to  plaintiff  and  which  the  defendant  neither  loaded  nor  prepared, 
and  into  the  arrangement  of  which,  and  the  stowing  and  placing  of  their 
contents  defendant  had  no  power  to  meddle.  The  cars  contained  horses 
which  were  entirely  under  control  of  plaintiff,  and  which  under  any  cir- 
cumstances may  involve  special  risks.  They  contained  an  elephant, 
which  might  very  easily  involve  difficulty,  especially  in  case  of  acci- 
dent. They  contained  wild  animals  which  defendant's  men  could  not 
handle,  and  which  might  also  become  troublesome  and  dangerous.  It 
has  always  been  held  that  it  is  not  incumbent  on  carriers  to  assume  the 
burden  and  risks  of  such  carriage. 

The  trains  were  not  to  be  run  at  the  option  of  the  defendant,  but  had 
short  routes  and  special  stoppages,  and  were  to  be  run  on  some  part  of 
the  road  chiefly  during  the  night.  They  were  to  wait  over  for  exhibi- 
tions, and  the  times  were  fixed  with  reference  to  these  exhibitions  and 
not  to  suit  the  defendant's  convenience.  There  was  also  a  divided 
authority,  so  that  while  defendant's  men  were  to  attend  to  the  moving 


110       COUP  V.   WABASH,  ST.  LOUIS  AND   PACIFIC   RAILWAY  CO. 

of  the  trains,  they  had  nothing  to  do  with  loading  and  unloading  cars, 
and  had  no  right  of  access  or  regulation  in  the  cars  themselves. 

It  cannot  be  claimed  on  an}-  legal  principle  that  plaintiff  could,  as  a 
matter  of  right,  call  upon  defendant  to  move  his  trains  under  such  cir- 
cumstances and  on  such  conditions,  and  if  he  could  not,  then  he  could 
only  do  so  on  such  terms  as  defendant  saw  fit  to  accept.  It  was  per- 
fectly legal  and  proper,  for  the  greatly  reduced  price,  and  with  the  risks 
and  trouble  arising  out  of  moving  peculiar  cars  and  peculiar  contents 
on  special  excursions  and  stoppages  to  stipulate  for  exemption  from 
responsibility  for  consequences  which  might  follow  from  carelessness  of 
their  servants  while  in  this  special  employment.  How  far  in  the  ab- 
sence of  contract  they  would  be  liable  in  such  a  mixed  employment 
where  plaintiff's  men  as  well  as  their  own  had  duties  to  perform  con- 
nected with  the  movement  and  arrangement  of  the  business  we  need 
not  consider. 

It  is  a  misnomer  to  speak  of  such  an  arrangement  as  an  agreement 
for  carriage  at  all.  It  is  substantially  similar  to  the  business  of  towing 
vessels,  which  has  never  been  treated  as  carriage.  It  is,  although  on  a 
larger  scale,  analogous  to  the  business  of  furnishing  horses  and  drivers 
to  private  carriages.  Whatever  may  be  the  liability  to  third  persons 
who  are  injured  by  carriages  or  trains,  the  carriage  owner  cannot  hold 
the  persons  he  emplojs  to  draw  his  vehicles  as  carriers.  We  had  be- 
fore us  a  case  somewhat  resembling  this  in  more  or  less  of  its  features 
in  Mann  v.  White  River  Log  &  Booming  Co.,  46  Mich.  38,  where  it 
was  sought  to  make  a  carrier's  liability  attach  to  log-driving,  which  we 
held  was  not  permissible.  All  of  these  special  undertakings  have  pecu- 
liar features  of  their  own,  but  they  cannot  be  brought  within  the  range 
^f  common  carriage. 

It  is  therefore  needless  to  discuss  the  other  questions  in  the  case, 
which  involve  several  rulings  open  to  criticism.  We  think  the  defend- 
ant was  not  liable  in  the  action,  and  it  should  have  been  taken  from 
the  jury  and  a  verdict  ordered  of  no  cause  of  action. 

The  judgment  must  be  reversed  and  a  new  trial  granted. 

The  other  justices  concurred. 


BIRMINGHAM  WATER  WORKS  COMPANY  V.   BIRMINGHAM.   Ill 

BIRMINGHAM  WATER  WORKS  COMPANY 
V.  BIRMINGHAM. 

Supreme  Court  of  Alabama,  1912. 

[176  Ala.  301.1] 

Somerville,  J. 

Respondent  has  always  adequately  and  satisfactorily  supplied  the 
people  of  Birmingham  in  general  with  wholesome  water,  and  has 
failed  to  do  so  only  as  to  the  specified  residence  section  on  Red  Moun- 
tain. This  section  is  now  thickly  settled  and  built  up  with  about  150 
residences  of  the  best  type,  occupied  by  about  750  people.  Respon- 
dent's water  mains  run  into  this  section,  the  city  has  placed]  about  25 
fire  hydrants  there,  and  its  sewer  system  has  been  extended  through 
it,  and  the  dwellings  have  been  connected  therewith.  The  mains  are 
full  of  water;  but,  for  lack  of  pressure,  the  water  is  unavailable  for 
fire  hydrants  or  sewerage  and  domestic  purposes.  Respondent  has 
the  money  and  means  to  erect  a  standpipe  on  Red  Mountain,  which 
will  adequately  supply  water  for  these  purposes,  and  such  a  structure 
is  thoroughly  practicable,  in  view  of  the  location  of  respondent's 
other  plants  and  mains;  but,  owing  to  the  cost  of  such  a  standpipe, 
and  of  the  double  pumpage  thereby  entailed,  respondent  would  derive 
no  profit  from  supplying  water  to  the  city  or  to  private  consumers  in 
this  elevated  territory. 

Respondent  voluntarily  assumed  the  duty  of  an  important  and 
essential  public  service,  which  was,  indeed,  its  very  raison  d'etre,  in 
return  for  which  it  was  clothed  with  sovereign  powers  and  invested 
with  potentially  profitable  franchises  by  both  state  and  city.  Upon 
the  faithful  discharge  of  this  duty  depends,  as  the  preamble  to  its 
charter  declares,  "the  health  and  comfort  of  the  citizens  of  Birming- 
ham," and  it  cannot  justly  be  permitted  to  render  that  service  when 
and  where  it  is  found  to  be  profitable,  and  to  omit  it  when  and  where 
it  deems  the  service  inconvenient  or  unremunerative.  It  would  be  a 
narrow  and  unreasonable  construction  of  the  provision  for  general 
and  continued  service  to  the  city  and  its  inhabitants  to  hold  that  the 
equipment  required  to  be  originally  provided  should  measure  for  all 
time  the  extent  of  that  service.  The  object  of  sections  5  and  7  was 
evidently  to  make  certain  an  initial  sersace  that  would  be  adequate 
and  satisfactory,  as  a  condition  precedent  to  the  operation  of  the  con- 
tract and  the  enjoyment  by  respondent  of  its  privileges  and  perqui- 
sites. In  other  words,  these  requirements  were  but  details  of  more 
or  less  temporary  expediency,  and  not  qualifications  of  respondent's 
general  duty  to  serve  as  the  exigencies  of  the  future  might  require. 

*  Only  parts  of  the  opinion  are  printed.  —  Ed. 


112      STATE  EX  REL.   HOWIE,  DISTRICT  ATTORNEY  V.   BENSON. 


STATE  EX  EEL.  HOWIE,  DISTRICT  ATTORNEY  v.  BENSON. 

Supreme  Court  of  Mississippi,  1914. 

[108  Miis.  779.»] 

CooK,  J.,  delivered  the  opinion  of  the  court. 

Will  the  courts  under  these  circumstances  refuse  to  intervene,  and 
compel  the  successor  of  the  corporation  to  perform  the  duties  of  the 
corporation?  This,  we  believe,  was  the  precise  question  presented  to 
the  Circuit  Court.  Mr.  Benson  bought  the  franchise  of  the  corpo- 
ration to  do  business  in  Jackson.  The  corporation  took  possession  of 
and  enjoyed  this  franchise  for  several  years.  The  corporation  under- 
took to  and  did  perform  the  duties  of  a  public  service  corporation  in 
exchange  for  the  license  or  franchise  to  use  the  property  of  the  city 
for  this  purpose.  He  cannot  hold  on  to  the  benefits  of  his  purchase 
without  incurring  the  obligation  to  perform  the  duties  of  the  trust. 
This  seems  to  be  made  certain  when  it  appears  that  he  refuses  to  as- 
sume the  burdens,  if  burdens  there  be,  because  he  has  entered  into  a 
compact  with  others  to  do  so  for  the  purpose  of  creating  a  monopoly 
—  of  destroying  competition. 

There  seems  to  be  no  conflict  in  the  authorities  that  courts  possess 
in  proper  cases  the  power  to  compel  trustees  of  a  public  trust  to  per- 
form the  duties  of  such  trust.  Leaving  out  of  view  section  910,  Code 
of  1906,  it  seems  clear  that  Mr.  Benson  assumed  the  burdens  of  an 
involuntary  trustee  when  he  took  over  the  franchise  of  the  corpora- 
tion, and  is  declining  to  use  the  same  for  the  purpose  of  creating  a 
monopoly.  The  apparent  conflict  in  the  decisions  of  the  courts  upon 
the  power  of  the  courts  to  comp)el  the  performance  of  legal  duties  of 
trustees  grows  out  of  the  p)eculiar  state  of  facts  in  the  several  cases. 
In  some  cases  the  courts  have  refused  to  issue  the  writ  of  mandamus 
because  it  appeared  that  the  corporation,  or  trustee,  was  unable  to 
perform.  In  other  cases  the  writ  was  denied  because,  in  the  opinion 
of  the  courts,  to  compel  the  performance  of  the  alleged  duty  would 
work  a  great  hardship  without  a  compensating  benefit.  There  is  and 
can  be  no  conflict  of  judgment  that,  in  proper  cases,  the  courts  will 
and  do  exercise  the  power  to  compel  the  performance  of  legal  duties. 
The  petition  in  this  case  declares  a  state  of  facts  which  justifies  the 
exercise  of  this  extraordinary  power. 

Reversed  and  remanded. 

'  Only  the  concluding  portion  of  the  opinion  is  printed.  —  Ed. 


ANONYMOUS.  113 


ANONYMOUS. 

King's  Bench,  1623. 

[Godbolt,  335,  jii.  UO.] 

Four  several  men  were  jojntly  indicted  for  erecting  and  keeping  of 
four  several  inns  in  Bathe  ;  It  was  moved  that  the  indictment  was  in- 
sufficient, because  the  offence  of  the  one  is  not  the  offence  of  the  other, 
like  unto  the  case  in  Dyer  19.  Where  two  joyn  in  an  Action  upon  the 
Case  for  words,  'tis  not  good,  but  the}'  ought  for  to  sever  in  their  ac- 
tions, because  the  wrong  to  the  one,  is  no  wrong  to  the  other.  Doder- 
IDGE,  Justice.  One  Indictment  may  comprehend  several  offences,  if 
they  be  particularly  laid,  and  then  it  is  in  law  several  indictments :  it 
may  be  intended  that  the  inns  were  lawful  inns  ;  for  it  is  not  laid  to  be 
ad  nocumentum,  and  therefore  not  punishable ;  but  if  they  be  an  annoy- 
ance and  inconvenient  for  the  inhabitants,  then  the  fame  ought  particu- 
larly to  appear ;  otherwise  it  is  a  thing  lawful  to  erect  an  inn.  An  action 
upon  the  case  lyeth  against  an  innkeeper  who  denies  lodging  to  a  trav- 
ailer  for  his  money,  if  he  hath  spare  lodging ;  because  he  hath  sub- 
jected himself  to  keep  a  common  inn.  And  in  an  action  upon  the  case 
against  an  innkeeper  he  needeth  not  to  shew  that  he  hath  a  license  to  keep 
the  inn.  If  an  innkeeper  taketh  down  his  signe,  and  j'et  keepeth  an 
hosterie,  and  action  upon  the  case  will  lie  against  him,  if  he  do  deny 
lodging  unto  a  travailer  for  his  money ;  but  if  he  taketh  down  his  signe, 
and  giveth  over  the  keeping  of  an  inn,  then  he  is  discharged  from  giving 
lodging.  The  indictment  in  the  principal  case  is  not  good,  for  want  of 
the  words  (ad  Nocumentum)  Haughton  and  Ley,  Justices  agreed. 
Ley,  If  an  indictement  be  for  an  offence  which  the  court  ex  officio, 
ought  to  take  notice  to  be  ad  Nocumentum,  there  the  indictement  being 
general,  ad  nocumentum  &  contra  Coronam  &  dignitatem,,  is  sufficient, 
without  shewing  in  what  it  is  ad  Nocumentum.  But  for  the  inns,  it  is 
lawfull  for  to  erect  them,  if  it  be  not  ad  Nocumentum,  and  therefore  in 
such  indictements,  it  ought  to  be  expressed  that  the  erecting  of  them  is 
ad  Nomenentum,,  &c.  and  because  in  this  case  there  wants  the  words 
ad  Conumentum,  the  Indictement  was  quashed.  Vi.  The  Lord  North 
and  Prat's  Case  before  to  this  purpose. 


114      NEWS   PUBLISHING  CO.   V.   SOUTHERN   RAILWAY  CO.   ET   AL. 


NEWS  PUBLISHING   COMPANY  v.  SOUTHERN  RAILWAY 
COMPANY  ET  AL. 

Supreme  Court  of  Tekkesske,  1908. 

[no  Tenn.  684.1] 

Defendant  railway  company  contracted  with  defendant  Commercial 
Publishing  Companj-,  agreeing  to  run  a  special  early  morning  train, 
carrying  only  the  newspapers  of  said  publisher,  in  consideration  of  said 
publishing  company  guaranteeing  to  it  certain  revenue  from  the  oper- 
ation of  the  train.  This  train  became  one  of  its  schedule  trains  and 
was  advertised  as  such,  and  was  controlled  exclusively  by  the  railway 
company,  which  received  all  the  revenues  derived  from  the  operation 
of  said  train,  both  in  the  carrying  of  passengers  and  freight. 

Complainant,  publishing  the  Memphis  Morning  News,  demanded  of 
defendant  railway  company  the  right  to  ship  as  freight  its  packages 
of  newspapers  to  its  several  agents  at  various  stations  along  the  line 
of  railway  where  the  train  was  scheduled  to  stop,  and  tendered  the 
usual  charges  on  the  same ;  but  said  defendant  refused  to  transport 
said  newspapers,  alleging  as  grounds  of  its  refusal,  the  obligations  of 
its  contract  with  defendant  Commercial  Publishing  Company. 

Mr.  Chief  Justice  Beard.  One  of  the  duties  imposed  upon  a  rail- 
road as  a  common  carrier  is  that  it  shall  deal  fairly  and  impartially 
with  all  who  seek,  as  passengers  or  shippers  of  freight,  to  avail  them- 
selves of  its  service.  Impressed,  as  it  is,  by  its  grant  of  franchises,  with 
a  trust  to  the  public,  this  trust  can  only  be  discharged  by  extending 
equal  facilities  to  each  member  constituting  the  public.  It  fails  of  its 
duty,  therefore,  when  discriminating  between  individuals  in  like  condi- 
tion, it  gives  one  an  advantage  in  the  carriage  of  his  person  or  property 
which  it  refuses  to  another,  and  it  follows  that  any  contract  made  by 
it,  by  which  one  or  more  members  of  a  class  are  fostered  at  the  expense 
of  or  to  the  detriment  of  others  of  the  same  class,  who  demand  like  ser- 
vice, is  unenforceable. 

Granting  that  goods  not  dangerous  in  their  nature  and  not  unfit  for 
shipment  are  offered  at  a  proper  place  and  time,  and  that  the  cost  of 
carriage  is  tendered,  and  the  railroad  has  facilities  for  shipment,  then 
it  must  accept  and  transport  them.  In  doing  this  it  "  can  show  no 
favor,  nor  make  distinctions  which  will  give  one  emplo3'er  an  advantage 
over  another,  either  in  the  time  or  order  of  shipment,  or  in  the  distance 
of  the  carriage,  or  in  the  conveniences  or  accommodations  which  may 
be  afforded."     Hutchinson  on  Carr.,  sec.  297;  New  Eng.  Ex.  Co.  v. 

1  The  statement  \s  taken  from  the  head  note.  Only  an  extract  from  the  opinion  ia 
printed.  —  Ed. 


NEWS  PUBLISHING   CO.   V.   SOUTHERN  RAILWAY   CO.   ET   AL.      315 

Maine  Cent.  R.  R.,  57  Me.  188,  2  Am.  Rep.  31 ;  Messenger  v.  Penn. 
R.  R.,  36  N.  J.  Law,  407,  13  Am.  Rep.  457;  Union  Pac.  Ry.  Co.  v. 
Goodridge,  149  U.  S.  680,  13  Sup.  Ct.  970,  37  L.  Ed.  986. 

These  general  principles  are  conceded  by  the  defendants  to  be 
sound,  but  it  is  insisted  they  do  not  control  the  present  case.  It  is 
admitted — or  it  is  true,  whether  admitted  or  not  —  that  the  railway 
company,  as  to  the  train  in  question,  was  a  common  carrier  of  pas- 
sengers and  their  baggage,  and  of  mail  and  express  ;  but  it  is  contended 
that  it  was,  by  reason  of  its  contract  with  the  Commercial  Publishing 
Compan}',  a  private  carrier  of  newspapers,  and  therefore  was  under  no 
obligations  to  admit  the  newspapers  of  the  complainant  on  its  train. 

It  is  true  "  a  common  carrier  may  become  a  private  carrier  or  bailee 
for  hire,  when  as  a  matter  of  accommodation  or  special  agreement  he 
undertakes  to  carrj'^  something  which  it  is  not  his  business  to  carry.'' 
Hutchinson  on  Carr.,  sec.  44.  For  example,  "  if  a  carrier  of  produce, 
running  a  truck  boat,  should  be  requested  to  carry  a  keg  of  silver  or  a 
load  of  furniture,  ...  he  might  justly  refuse  to  receive  such  freight, 
except  by  such  an  agreement  as  he  might  choose  to  make.  .  .  .  But 
when  a  carrier  has  a  regularly  established  business  for  carrj'ing  all  or 
certain  articles,  and  especially  if  that  carrier  be  a  corporation  created  for 
the  purpose  of  the  carrying  trade,  and  the  carriage  of  the  articles  is 
embraced  within  the  scope  of  its  chartered  powers,  it  is  a  common 
carrier,  and  a  special  contract  about  its  responsibility  does  not  divest 
it  of  the  character."  N.  Y.  C.  R.  R.  Co.  v.  Lockwood,  17  Wall.  357, 
21  L.  Ed.  627.  Affirmed. 


116  WESTERN  UNION  TELEGRAPH   CO.    V.  FROTLEE. 


WESTERN  UNION  TELEGRAPH  COMPANY  v.  FROTLER. 
Court  of  Appeals  of  Illinois,  1894. 

[55  lU.  App.  659.1] 

Wall,  J.  Appellee  recovered  a  judgment  against  appellant  for 
$134.09  for  failing  to  deliver  a  telegram  addressed  to  him  by  a  com- 
mission firm  in  Chicago.  Appellee  was  a  farmer,  residing  a  mile  and 
a  quarter  from  the  village  of  Kansas.  Having  some  marketable  cattle 
which  he  wished  to  sell,  he  wrote  to  the  commission  firm  for  informa- 
tion and  they  sent  him  the  telegram  in  question.  They  did  not  know 
whether  he  lived  in  the  village  or  what  arrangements  he  might  have 
made  for  having  a  telegram  delivered  to  him  and  paid  merely  for  its 
transmission  to  Kansas.  The  operator  did  not  know  the  appellee  but 
made  effort  to  find  him  within  the  village  and  failed  to  do  so.  He 
learned,  however,  where  he  lived,  and  it  being  beyond  the  free  delivery 
limits,  did  nothing  further.  The  appellant  having  heard  in  some  indi- 
rect way  that  there  was  a  telegram  for  him,  called  at  the  oflSce  and  re- 
ceived it.  In  the  meantime,  not  having  heard  from  this  commission 
firm,  he  had  sent  his  cattle  to  another  firm. 

The  claim  is  that  if  he  had  received  the  telegram  promptly  he  would 
have  sent  the  cattle  in  response  thereto  by  the  first  train  and  would 
have  realized  a  higher  price  than  that  received.  The  verdict  repre- 
sents the  allied  diff'erence.  The  telegram  was  received  at  Kansas  at 
1 :  10  P.M.,  July  5,  1892.  It  did  not  reach  the  hands  of  appellee  until 
the  9th. 

It  appears  that  by  a  rule  of  the  company  the  free  delivery  limit  for 
a  town  of  less  than  $5,000  inhabitants  was  one-half  mile  from  office. 

It  is  urged  on  the  other  side  that  this  is  a  reasonable  rule  and  that 
it  should  be  enforced,  and  on  the  other  that  whether  reasonable  or  not 
it  does  not  appear  that  the  sender  or  the  appellee  knew  of  it,  and  so  it 
is  not  binding  on  either.  The  rule  is  reasonable,  and  not  only  so,  but 
it  is  a  matter  of  common  knowledge  among  business  men  that  there  is 
always  a  limit  for  the  free  delivery  of  messages. 

The  trouble  here  was  that  the  appellee  did  not  expect  a  reply  by 
wire.  He  went  to  the  post  office  daily,  but  as  he  had  not  instructed 
the  commission  men  to  telegraph  him  it  did  not  occur  to  him  that  they 
would,  and  they  not  knowing  that  he  lived  beyond  the  limit,  made  no 
arrangement  with  the  company  for  delivery  of  the  message.  Hence 
it  was  bound  to  do  no  more  than  it  was  paid  for,  that  is,  transmit  the 
message  to  the  designated  office  and  there  make  reasonable  effort  to 
deliver  it  within  the  free  limit. 

1  Only  one  point  is  printed.  —  Ed. 


FARLEY  V.   LAVARY.  117 

It  is  argued  that  the  agent  should  have  known  from  its  terms,  that 
it  was  a  message  of  importance,  but  this  did  not  require  him  to  go 
beyond  the  limits  of  free  delivery.  If  he  inferred  that  the  message 
was  of  unusual  importance,  he  must  also  have  inferred  that  the  ap- 
pellee was  expecting  it,  and  not  living  within  the  limits,  would  call 
for  it.  At  any  rate,  such  a  conclusion  on  his  part  would  have  been 
reasonable. 

We  are  of  the  opinion  that  the  ease  shown  by  the  proof  did  not 
justify  the  judgment,  which  will  therefore  be  reversed  and  the  cause 
remanded. 


FARLEY  V.   LAVARY. 
Court  of  Appeals  of  Kentucky,  1908. 

[107  Ky.  523.] 

Judge   White  delivered  the  opinion  of  the  court. 

This  action  was  brought  by  appellee  for  damages  for  the  destruction 
of  certain  household  goods.  The  allegations  of  the  petition  are  that 
appellant,  doing  business  as  the  Farle^'  Transfer  Company,  contracted, 
for  hire,  to  carry  these  household  goods  from  Lexington  to  Nicholas- 
ville,  and  that  while  the  goods  were  in  the  possession  of  appellant 
they  were  destroyed  by  reason  of  the  negligence  of  the  servants  and 
employes  of  appellant  in  charge  of  the  wagons.  It  is  alleged  that 
appellant  is  engaged  in  the  business  of,  and  is,  a  common  carrier. 
The  damage  claimed  is  $500. 

The  answer  denied  that  appellant  was  a  common  carrier  at  all ;  ad- 
mitted a  contract  with  appellee  to  haul  by  wagon  her  household  goods 
from  Lexington  to  Nicholasville,  and  admitted  that  while  in  transit 
certain  of  the  goods  were  destroyed  by  fire,  and  other  articles  damaged, 
but  denied  that  b}-  reason  thereof  appellee  was  damaged  to  the  extent 
of  $500,  or  in  any  snm  exceeding  $250.  The  answer  further  pleaded 
that  the  destruction  and  damage  to  the  goods  by  fire  were  without  fault 
on  his  part,  and  denied  that  the  fire  was  caused  by  the  negligence  of 
any  of  his  servants. 

The  issue  was  tried  before  a  jury,  who  returned  a  verdict  for  $400 
for  appellee.  Judgment  was  entered  accordingly,  and  from  that  judg- 
ment this  appeal  is  prosecuted. 

The  facts  proven  on  the  trial  without  material  controversy  are  that 
appellant,  doing  business  as  the  Farley  Transfer  Compan}',  had  a 
number  of  vehicles  running  in  the  city  of  Lexington  all  duly  and  regu- 
larly licensed  to  haul  for  hire ;  that  in  such  business  he  hauled  for  any 
and  all  persons,  and  goods  and  merchandise  of  all  kinds ;  that  he 
hauled  in  the  cit}-  and  about  the  city,  to  the  fair  grounds,  and  other 


118  FARLEY  V.   LAVARY. 

places.  There  was  no  dispute  as  to  the  contract  with  appellee  to  haul 
the  household  goods,  nor  of  the  fact  of  damage.  As  the  cause  of  the 
fire,  there  was  some  proof  that  the  driver  was  smoking ;  and,  unless 
the  fire  caught  from  his  pipe  or  cigar,  it  is  unexplained  how  it  origi- 
nated.    The  proof  as  to  the  amount  of  the  loss  is  conflicting. 

The  court  gave  to  the  jury  an  instruction  as  follows :  "  If  the  jury 
believe  from  the  evidence  that  the  fire  which  damaged  or  destroyed 
the  goods  of  the  plaintiff  was  caused  by  the  negligence  or  carelessness 
of  the  defendant's  agents  or  employes  in  charge  of  the  wagon  upon 
which  said  goods  were  being  carried,  or  if  the  jurj'  believe  from  the 
evidence  that  the  defendant  at  the  time  of  said  fire  was  a  common 
carrier,  and  was  conveying  said  goods  as  a  common  carrier,  the  jury 
should  find  for  the  plaintiff. " 

The  court  then  defined  a  "  common  carrier,"  and  also  gave  the 
counterpart  of  No.  1  and  as  to  the  measure  of  damages.  Appellant 
seriously  objects  to  instruction  No.  1,  quoted,  and  to  its  counterpart. 
Counsel  insists  that  there  was  not  sufficient  proof  of  negligence  of  the 
emplo}'^  in  charge  of  the  wagon  to  sustain  a  recovery  on  that  ground, 
and  also  that  there  was  no  evidence  that  appellant  was,  as  to  these 
goods,  and  this  contract  with  appellee,  a  common  carrier.  Counsel 
therefore  insists  that  instruction  No.  1,  supra^  was  error,  for  which  a 
reversal  must  be  had. 

The  instruction  is  based  upon  two  ideas;  i.  e.,  appellant  is  liable  if 
the  loss  occurred  by  reason  of  negligence  of  his  employ^ ;  appellant  is 
liable  if  he  was  a  common  carrier.  If  from  the  evidence  the  court  was 
authorized  to  submit  to  the  jur}^  the  question  of  appellant  being  a  com- 
mon carrier,  the  question  of  negligence  becomes  unimportant.  If  appel- 
lant was  a  common  carrier  in  carrying  these  goods,  his  liabilit}'  stands 
admitted ;  for  he  nowhere  pleads  that  the  damage  was  caused  by  the 
act  of  God,  the  public  enemy,  or  the  inherent  quality  of  the  goods. 

We  are  of  opinion  that  by  the  evidence  of  appellant  himself  it  is 
Bhown  that  he  was  a  common  carrier  within  the  limits  of  the  city  of 
Lexington.  He  admits  that  he  hauled  for  all  or  any  persons,  and  had 
obtained  a  license  so  to  do.  Being  a  common  carrier,  appellant  could 
have  been  compelled  to  haul  for  appellee  within  the  territory  in  which 
he  was  engaged,  but  she  could  not  have  compelled  him  to  go  outside 
his  territorial  limit. 

In  this  case,  however,  he  contracted  to  go  beyond  his  territor}'. 
Applying  the  facts  to  a  railroad,  we  should  say  he  agreed  to  go  beyond 
the  end  of  his  line.  It  has  repeatedl}'  been  held  that,  while  a  railroad 
cannot  be  compelled  to  accept  and  agree  to  carry  goods  to  points 
beyond  its  line,  yet  it  might  do  so.  If  the  carrier  contracted  to  convey 
beyond  its  line,  it  would  be  liable  as  a  common  carrier  for  the  whole 
distance. 

In  the  case  of  Ireland  v.  Mobile  &  Ohio  Railroad  Co.,  105  Ky.  400 
[20  Ky.  L.  R.  1586  ;  49  S.  W.  188,  453],  this  doctrine  is  well  settled. 
In  the  dissenting  opinion  by  Mr.  Justice  Burnam  (Justice  DuRellb 


CROUCH  V.   ARNETT.  119 

concurring)  this  principle  is  admitted  and  emphasized ;  the  dissent 
contending  that  beyond  its  line  a  carrier  may,  by  special  contract, 
make  its  liabilit}'  less  than  at  common  law. 

It  being  clear  by  the  proof  that  appellant  was  a  common  carrier,  and 
agreed  to  carry  these  goods  from  some  point  in  Lexington  to  Nicholas- 
ville,  without  any  further  contract,  the  liability  of  a  common  carrier 
attached  the  whole  distance.  The  instruction  given  was,  therefore, 
not  error.     There  appears  to  us  no  error  in  the  record. 

The  judgment  is  therefore  affirmed,  with  damages.^ 


CROUCH  V.  ARNETT. 
Supreme  Court  of  Kansas,  1905. 

[71  Kans.  49.2] 

William  R.  Smith,  J.  This  was  an  action  in  mandamus,  brought 
by  plaintiff  in  eiTor  in  the  district  court  to  compel  the  firm  of  Arnett  &, 
Hobart,  doing  business  as  the  lola  Telephone  Company,  to  replace  in 
his  residence  a  telephone  instrument  which,  it  is  alleged,  was  arbitrarily 
removed  therefrom  by  the  company. 

Evidence  was  offered  by  the  plaintiff  showing  that  defendants,  when 
this  controversy  arose,  had  been  operating  a  local  telephone  system  in 
lola  and  vicinity  for  about  seven  years,  and  that  the  residence  in  which 
Crouch  lived  had  been  supplied  with  an  instrument  during  that  time. 
Three  other  persons,  however,  had  lived  in  the  premises  during  the 
time  previous  to  the  occupancy  of  plaintiff.  There  were  460  patrons  of 
the  telephone  company  in  Tola  and  vicinit}',  26  of  whom  were  outside 
the  city  limits.  The  company  also  maintained  telephones  in  connection 
with  the  Tola  exchange  at  Gas  City,  three  and  one-half  miles  east,  and 
at  La  Harpe,  three  miles  further  distant. 

The  residence  of  plaintiff  was  situated  on  grounds  adjoining  the  city 
but  not  within  the  corporate  limits.  The  pole  from  which  the  wire  ex- 
tended into  Mr.  Crouch's  home  was  thirty  feet  from  the  house  and  situ- 
ated within  the  corporate  limits  of  lola.  A  dispute  arose  between  the 
company  and  Mr.  Crouch  respecting  the  payment  of  telephone  charges, 
resulting  in  threats  by  the  former  to  remove  the  instrument,  but  before 
it  was  taken  out  a  payment  was  made,  so  that  the  question  of  the  de- 
linquency of  the  plaintiff  is  not  a  factor  in  the  case. 

Testimony  introduced  on  behalf  of  the  telephone  company  tended  to 

show  that  telephones  were  installed  in  manufactories  outside  of  the 

city  —  cement  plants  and  brick- works  —  but  that  none  of  them  was 

in  the  vicinity  of  Mr.  Crouch's  residence,  the  nearest  being  about  half 

1  See  also  Ballard  v.  American  Express  Co.,  107  Mich.  695.  —  Ed. 

'  The  dissenting  opinion  is  omitted.  —  £l>. 


120  CBODCH  V.   ARNETT. 

a  mile.  The  zinc  smelter  adjoining  the  city  to  the  northwest,  the  ice 
plant,  a  laundry,  the  water-works  company  and  the  pest-house  west  of 
the  cit}'  limits  were  also  supplied  with  telephones.  Instruments  were 
also  furnished  at  the  residences  of  four  persons  outside  of  the  corporate 
limits  of  lola,  but  these  persons  either  furnished  or  paid  for  their  own 
iines  and  poles. 

Defendants  in  error  were  granted  by  ordinance  the  right  to  construct 
a  telephone  line  in  the  city  of  lola,  and  to  use  the  streets  and  alleys 
for  the  erection  of  poles. 

A  trial  before  the  court,  without  a  jury,  resulted  in  a  judgment  in 
favor  of  the  telephone  company,  and  plaintiff  complains. 

It  may  be  conceded  that  defendants  below,  by  devoting  their  prop- 
erty to  public  employment,  and  by  putting  it  in  the  service  of  the  public, 
thereby  subjected  it  to  the  regulation  of  the  legislature  and  control  of 
courts  to  the  same  extent  as  other  common  carriers  are  controlled. 
(State  of  Missouri  v.  Bell  Telephone  Co.,  23  Fed.  539  ;  Delaware  & 
A.  Telegraph  &  Telep.  Co.  v.  State  of  Delaware,  50  Fed.  677,  2  C.  C. 
A.  1.)  We  also  agree  with  counsel  that  such  companies  cannot  law- 
fully discriminate  between  subscribers  of  the  same  class,  and  that  a 
company  or  partnership  doing  a  general  telephone  business  in  a  city 
must  treat  impartially  all  persons  whom  they  undertake  to  serve.  Also, 
when  doing  a  general  business  outside  a  city,  all  patrons  in  the  vicinity 
must  be  dealt  with  impartiall}'.  The  question  of  fact  tried  and  consid- 
ered b}'  the  court  below  was  whether  the  telephone  companj'  was  doing 
a  general  business  outside  of  lola  and  in  the  vicinity  thereof.  The  gen- 
eral finding  of  the  trial  court  determined  the  question  in  the  negative, 
and  that  the  limits  of  the  compan3''8  general  business  outside  the  city 
did  not  embrace  the  plaintiff's  residence.  While  the  company  was 
serving  several  manufactories  beyond  the  city  limits,  they  were  not  in 
the  class  with  the  plaintiff,  and  the  owners  of  residences  outside  the  city 
who  had  telephones  were  supplied  at  their  own  expense  or  paid  for  the 
poles  and  wires  used  to  connect  them  with  the  exchange.  If  Mr. 
Crouch  had  resided  in  the  city  his  rights  would  have  been  clear.  Be- 
ing outside,  a  question  of  fact  was  presented  whether  in  removing  his 
instrument  a  discrimination  was  practiced  on  him  —  a  right  infringed 
which  he  enjoyed  in  common  with  others  situated  similarly.  A  tele- 
phone company  operating  wholly  within  the  corporate  limits  of  a  city 
could  not  be  compelled  to  supply  instruments  to  residents  bej'ond  the 
boundaries  of  the  town  and  make  connections  therewith.  In  this  in- 
stance it  did  serve  patrons  outside  of  lola,  but  the  disputed  question 
was  whether  Mr.  Crouch,  by  reason  of  proximity  and  other  conditions, 
was  entitled  to  equal  rights  with  them.  This  was  to  be  determined 
from  the  testimony  of  witnesses  and  was  peculiarly  within  the  province 
of  the  trial  court  That  there  was  some  evidence  to  sustain  the  judg- 
ment of  the  court  below  cannot  be  denied. 


SAVANNAH  AND   OGEECHEE   CANAL  CO.   V.   SHUMAN.  121 

The  judgmeat  is  affirmed. 


SAVANNAH  AND  OGEECHEE  CANAL  CO.  v.  SHUMAN. 
Supreme  Court  of  Georgia,  1893. 

[91  Ga.  400.] 

Lumpkin,  J.  1.  The  16th  section  of  the  charter  of  the  Savannah, 
Ogeechee  and  Altamaha  Canal  Company,  Dawson's  Compilation,  p.  97, 
declares,  "that  the  said  corporation  shall  be  obliged  to  keep  the  said 
canals  and  locks  in  good  and  sufficient  order,  condition,  and  repair, 
and  at  all  times  free  and  open  to  the  navigation  of  boats,  rafts,  and 
other  water  crafts ;  and  for  the  transportation  of  goods,  merchandise, 
and  produce,"  etc.  Counsel  on  both  sides  referred  us  to  the  above 
charter  as  that  of  the  plaintiff  in  error,  which  is  designated  in  the  record 
as  the  "  Savannah  and  Ogeechee  Canal  Co.,"  and  is  also  thus  desig- 
nated in  the  case  of  Habersham  et  al.  against  this  corporation  in  26  Ga. 
665.  We  therefore  presume,  without  investigation,  that  the  corporate 
name  of  this  company  was  at  some  time  properly  amended  by  striking 
out  "  Altamaha"  and  placing  "and"  before  " Ogeechee."  It  is  appar- 
ent, without  argument,  that  under  this  charter  it  is  the  imperative  duty 
of  this  company  to  keep  its  canal  in  a  navigable  condition,  and  accord- 
ing to  the  principle  of  the  ruling  of  this  court  in  the  case  above  cited, 
the  performance  of  this  duty  may  be  enforced  b}'  mandamus. 

2.  It  appears  from  the  record  that  the  defendant  in  error  is  engaged 
in  the  lumber  business,  and  for  several  years  had  used  the  canal  in 
question  for  transporting  timber  and  other  things,  and  that  because  of 
its  unnavigable  condition  he  was  compelled  to  ship  his  timber  by  s 
more  circuitous  and  expensive  route.  It  is  clear,  therefore,  that  he  is 
specially  interested  in  the  navigation  for  which  this  canal  was  char- 
tered, and  that  by  the  failure  of  the  company  to  keep  the  canal  nav- 
igable he  sustains  a  special  damage  in  which  the  general  public  does 
not  share.  Under  these  circumstances  he  was,  in  our  opinion,  entitled 
to  the  writ  of  mandamus  to  compel  a  performance  by  the  company  of 
the  duty  above  mentioned.     There  may  be  authorities  to  the  contrary, 


122  SAVANNAH   AND   OGEECHEE   CANAL  CO,    V.   SHUMAN. 

but  the  true  law  of  this  question  seems  to  be  in  favor  of  the  doctrine 
that  a  private  person  may,  b}'  mandamus^  enforce  the  performance  by 
a  corporation  of  a  public  duty  as  to  matters  in  which  he  has  a  special 
interest.  See  2  Morawetz  on  Priv.  Corp.  §  1132 ;  4  Am.  &  Eng.  Enc. 
of  Law,  289,  291,  and  cases  cited.  In  the  case  reported  in  26th  Ga., 
supra,  the  relief  sought  was  granted  at  the  instance  of  private  per- 
sons, but  it  does  not  appear  that  the  point  was  speciall}'  made  as  to 
their  right,  as  such,  to  apply  for  the  writ  of  mandamus,  the  position 
then  taken  by  the  canal  company  being  that  this  writ  would  not  lie 
at  all. 

3.  In  Moody  v.  Fleming,  4  Ga.  115,  this  court  held  that,  except  in 
a  case  of  clear  legal  right,  the  writ  of  mandamus  was  a  discretionar}' 
remedy.  This  view  was  followed  in  Harwell  &  Wife  v.  Armstrong 
et  al.,  11  Ga.  328,  and  in  Loyless  v.  Howell,  15  Ga.  554,  injunction 
cases,  in  which  this  court,  by  citing  the  case  first  above  mentioned, 
evidently  intended  to  put  cases  of  matidamus  and  of  injunction  upon 
the  same  footing  as  to  the  question  of  discretion.  The  granting,  or 
refusing,  of  injunctions  has  always  been  regarded  as  discretionary,  and 
it  seems  quite  clear  that  in  cases  of  mandamus,  it  lies  xery  largely 
within  the  discretion  of  the  presiding  judge  as  to  whether  or  not  the 
writ  will,  in  a  given  case,  be  made  absolute ;  and  in  order  to  reverse  a 
judgment  in  a  case  of  this  kind,  it  would  be  necessary  to  show  that  the 
discretion  of  the  court  was  abused. 

In  the  present  case,  the  corporation  answered  that  it  had  no  funds, 
nor  any  means  of  obtaining  such  ;  and  also,  that  it  would  not  be  prof- 
itable to  operate  the  canal  if  it  were  put  in  navigable  condition.  For 
the  purposes  of  the  decision  below  this  answer  was  taken  as  true,  the 
question  of  its  sufficiency  being  raised  by  demurrer. 

So  long  as  the  corporation  retains  its  franchise,  it  will  not  be  allowed 
to  urge  as  an  excuse  for  failing  to  perform  any  duty  required  of  it  by 
its  charter,  that  the  same  would  be  unprofitable.  It  cannot  consistently 
keep  the  franchise  and  refuse  to  perform  the  duties  incident  thereto  for 
the  mere  reason  that  such  performance  would  be  unremunerative.  If 
the  rights,  privileges,  and  franchises  granted  by  the  charter  are,  in 
connection  with  the  corresponding  duties  thereby  imposed,  no  longer 
desirable,  the  company  should  simply  surrender  the  charter. 

As  to  the  validity  of  the  other  reason  alleged  for  failing  to  put  the 
canal  in  a  navigable  condition,  viz. :  that  the  company  is  without  funds, 
and  without  means  of  obtaining  funds,  the  question  is  by  no  means  so 
clear.  The  writer  was  inclined  to  hold  that,  under  section  3200  of  the 
code  (providing  that  mandamus  will  not  be  granted  when  it  is  manifest 
that  the  writ  would,  for  any  cause,  be  nugatory  or  fruitless),  the  answer 
of  the  company  presented  a  good  reason  for  refusing  in  this  case  to 
make  the  writ  absolute.  After  some  reflection,  however,  I  have  yielded 
to  the  better  judgment  of  my  brethren,  and  concluded  to  agree  with 
them  in  holding  that  the  entire  matter  may  be  safely  left  to  the  discre- 
tion of  the  circuit  judge.     While  it  is  quite  certain  that  if  the  company 


STATE  EX  REL.  V.   DODGE   CITY,   ETC.   RAILWAY.  123 

has  no  funds  now,  nor  any  means  of  obtaining  them,  and  remains  per- 
manently in  this  condition,  compliance  with  the  judge's  final  order  will 
be  impossible,  so  far  as  the  corporation  itself  is  concerned,  there  may 
be  a  change  in  the  present  condition  of  things,  and  the  officers  of  the 
company  may  be  able  to  find  some  wa^"  to  raise  money  in  order  to  obev 
the  mandate  of  the  court.  At  any  rate,  they  should  make  a  bona  Jicle 
effort  to  do  so.  If,  because  of  the  want  of  means,  thej-  cannot  comply 
with  the  writ,  and  if,  after  due  diligence,  they  remain  unable  to  procure 
the  necessar}'  means  for  this  purpose,  and  make  these  things  appear 
to  the  court  in  any  proceeding  for  contempt  which  may  be  instituted 
against  them,  we  apprehend  the  presiding  judge  would  take  great  care 
to  see  that  no  injustice  or  hardship  was  imposed  upon  them,  and  cer- 
tainly would  not  inflict  punishment  for  a  failure  to  do  a  thing  impossible 
of  accomplishment.  This  matter  is  not  now  directly  before  us,  and  we 
leave  the  question  thus  raised  to  be  dealt  with  by  the  judge  of  the  court 
below  when  it  arises,  if  it  ever  does.  Judgment  affirmed} 


STATE  EX  REL.  LITTLE  v.  DODGE  CITY,  MONTEZUMA  AND 
TRINIDAD  RAILWAY  CO. 

Supreme  Court  of  Kansas,'  1894. 

[53  Kan.  329.] 

HoRTON,  C.  J.  This  proceeding  has  been  commenced  in  this  court, 
not  for  the  purpose  of  compelling  the  Dodge  City,  Montezuma  and 
Trinidad  Railway  Company  or  any  of  the  defendants  to  operate  the 
line  of  that  railway  in  Ford  and  Gray  Counties,  or  any  part  thereof, 
but  merely  to  require  the  defendants  to  repair  and  relay  certain  por- 
tions of  the  track  and  roadbed  of  the  railway  company.  A  railway 
company  may  be  compelled  by  mandamus  to  perform  the  public  duties 
specifically  and  plainly  imposed  upon  the  corporation ;  and,  therefore, 
we  have  no  doubt  of  the  power  of  this  court,  in  a  proper  case,  to  com- 
pel a  company  to  operate  its  road,  and  for  that  purpose  to  compel  the 
replacement  of  its  track  torn  up  in  violation  of  its  charter.  The  State 
V.  Railway  Co.,  33  Kans.  176 ;  City  of  Potwin  Place  v.  Topeka  Ry. 
Co.,  51  Kan.  609  ;  U.  P.  Ry.  Co.  v.  Hall,  91  U.  S.  343  ;  Rex  v.  S.  &  W. 
Ry.  Co.,  2  Barn.  &  Aid.  646.  But  the  granting  of  a  writ  of  man- 
dam,us  rests  somewhat  in  the  discretion  of  the  court.  City  of  Potwin 
Place  V.  Topeka  Ry.  Co.,  supra. 

The  Montezuma  railway  company  is  insolvent.    It  has  no  cars  or 

1  Compare:  In  re  R.  R.,  17  N.  B.  667;  R.  v.  S.  W.  R.  R.,  2  B.  &  A.  646;  Pacifio 
R.  R.  V.  Hall,  91  U.  S.  343.  — Ed. 


124  STATE  EX   EEL.   V.   DODGE   CITY,  ETC.   RAILWAY. 

engines.  Its  line  of  road  has  not  been  operated  for  many  months. 
The  road  cannot  be  operated  except  at  a  great  loss.  The  railway 
company  is  not  able  to  operate  it,  and  has  no  funds  or  property  which 
can  be  applied  to  the  payment  of  operating  expenses.  A.  T.  Soule, 
the  promoter  of  the  railway  conipan}',  has  expended  over  $200,000  in 
the  construction  and  operation  of  the  road  without  any  returns.  All 
of  its  property  was  sold,  or  attempted  to  be  sold,  to  the  Block-PoUak 
company  for  $25,000  onh*.  The  venture  of  the  promoter  has  been 
very  unsuccessful  to  him.  His  experience,  and  the  other  parties  invest- 
ing, in  constructing  and  operating  this  railway  has  been  most  unfortu- 
nate. No  one  connected  with  the  railway  corporation  has  realized  any 
personal  benefit  from  any  bond,  mortgage,  or  subsidy  of  the  road. 
The  Rock  Island  road,  which,  by  an  arrangement  with  the  Montezuma 
company,  ran  its  trains  over  the  road  from  the  time  of  its  completion 
until  May,  1893,  and  which  has  better  facilities  for  operating  the  road 
than  any  other  company  or  person,  will  not  take  the  road  as  a  gift  and 
operate  it.  It  seems  to  be  conclusively  shown  that  all  the  receipts  to 
be  derived  from  operating  the  road  will  not  pay  the  operating  expenses, 
not  taking  into  account  the  repairs  of  the  road  and  the  taxes. 

The  contention  on  the  part  of  the  plaintiff  is,  that  as  the  railway 
was  sold  to  E.  F.  Kellogg  for  Wilson  Soule  by  a  receiver,  and  not  by 
the  sheriff  of  Ford  County,  the  sale  is  absolutely  void.  If  this  be  true, 
then  there  is  no  legal  duty  upon  the  part  of  "Wilson  Soule  to  repair  or 
operate  the  road.  If,  however,  the  sale  is  not  absolutely  void,  we  do 
not  think,  upon  the  showing  made,  that  Wilson  Soule,  as  a  private  per- 
son, ought  to  be  compelled  to  operate  the  road.  The  Block-PoUak 
Iron  Company  cannot,  under  its  conditional  purchase  of  the  super- 
structure, be  compelled  to  repair  or  operate  the  road.  There  is  no 
legal  duty  upon  any  of  the  other  defendants  to  repair  the  road.  There- 
fore, the  question  is,  whether  the  court  will  compel,  or  attempt  to  com- 
pel, the  railway  company,  a  bankrupt  corporation,  to  relay  the  track 
and  repair  the  roadbed.  The  court  will  not  make  a  useless  or  futile 
order.  It  will  not  do  a  vain  thing.  The  order  prayed  for  should  only 
be  issued  in  the  interest  of  the  public.  If  the  track  is  replaced,  there 
is  no  reasonable  probability  that  the  road  will  be  or  can  be  operated. 
If  a  railway  will  not  pay  its  mere  operating  expenses,  the  public  has  little 
interest  in  the  operation  of  the  road  or  in  its  being  kept  in  repair. 
Mor.  Priv.  Cor.  1119  ;  Commonwealth  v.  Fitchburg  Ry.  Co.,  12  Gray, 
180  ;  O.  &  M.  Ry.  Co.  v.  People,  30  Am.  &  Eng.  Ry.  Cases  [111.],  509  ; 
People  V.  A.  &  Vt.  Ry.  Co.,  24  N.  Y.  261. 

The  average  life  of  cedar  ties  —  the  kind  used  on  this  road  —  is  from 
three  to  five  years.  All  the  ties  laid  in  1888  will  soon  be  so  much  de- 
cayed as  to  be  worthless.  A  large  part  were  worthless  when  the  track 
was  taken  up.  If  the  track  were  relaid,  the  road  would  be  in  no 
reasonable  condition  to  be  used,  unless  new  ties  were  furnished,  and 
these  in  a  few  years  would  again  become  decayed  and  useless.  The 
use  of  the  road  was  abandoned  before  any  part  of  the  track  was  torn 


WELD   V.   GAS   &   ELECTRIC   LIGHT   COMMISSIONERS.  125 

up.  If  the  track  were  replaced,  it  would  be  of  no  immediate  public 
benefit  —  possibly  of  no  future  benefit  —  because,  if  the  railway  is  not 
operated,  the  mere  existence  of  a  road,  not  in  use,  is  not  beneficial  to 
any  one. 

The  peremptory  writ  prayed  for  will  be  denied,  with  costs. 

All  the  justices  concurring. 


WELD  V.  GAS  &  ELECTRIC  LIGHT  COMMISSIONERS. 
Supreme  Court  of  Massachusetts,  1908. 

[197  Mass.  556.] 

Petitions  by  Charles  G.  Weld  for  certiorari  against  the  board  of  gas 
and  electric  light  commissioners,  to  review  a  decision  of  the  board,  and 
for  mandamus  against  the  Edison  Electric  Illuminating  Company  of 
Boston.     Cases  reported  to  the  full  court.     Petitions  dismissed. 

It  appeared  that  the  petitioner,  the  owner  of  a  house  on  Bay  State 
Road  in  Boston  had  formerly  been  supplied  with  electricity  by  the 
respondent,  Edison  Illuminating  Company  of  Boston,  but  in  the  year 
1902  an  arrangement  was  made  between,  the  respondent  and  d,  Brook- 
line  company  by  which  the  conduits  and  business  of  the  Boston  Com- 
pany on  the  westerly  side  of  a  line  fixed  were  taken  over  b}'  the 
Brookline  company,  and  thereafter  the  petitioner  was  furnished  current 
by  the  Brookline  company  as  his  house  lay  to  the  west  of  the  line. 

Knowlton,  C.  J.  The  petitioner  is  seeking  the  enforcement  of  an 
alleged  public  right.  His  private  interest  is  not  independent  of  the 
rights  of  the  public,  but  he  claims  only  through  the  public,  and  as  one 
of  the  citizens  who  are  to  be  served  by  the  respondent.  See  Brewster 
V.  Sherman  (Mass.),  80  N.  E.  821.  The  facts  show  that  he  has  suffered 
nothing  in  the  sufficiency  or  quality  of  the  service,  or  the  price  charged 
for  it.  So  far  as  appears  he  is  not  likely  to  suffer  in  the  future.  In- 
deed, the  statutes  above  referred  to  are  intended  to  give  him  perfect 
protection. 

We  come,  therefore,  to  the  question  whether,  under  our  laws,  an 
electric  light  or  gas  company,  having  a  franchise  covering  a  cit}'  or 
town  in  which  another  company  has  a  like  franchise,  cannot,  in  con- 
ducting its  business,  if  the  public  interest  is  not  thereby  affected,  ar- 
range with  the  other  company  to  extend  its  lines  into  one  part  of  the 
territory  that  is  being  newly  developed,  and  leave  the  other  company 
to  extend  its  lines  into  another  part  of  the  territory,  so  that  neither 
company  will  duplicate  lines  in  streets  where  the  other  is  serving  the 
public.  It  seems  to  us  that,  under  such  conditions,  this  is  a  detail  of 
administration  which  is  not  in  violation  of  law.     In  other  words,  we 


126  WELD   V.   GAS  «k  ELECTRIC   LIGHT  COMMISSIONERS. 

think  that  a  corporation  making  such  an  arrangement  is  not  subject  to 
prosecution  under  a  writ  of  mandamus,  for  a  failure  properly  to  exercise 
its  corporate  franchise.  We  are  not  called  upon  to  determine  in  this 
case  whether  such  an  arrangement  could  be  availed  of  as  a  justification, 
if,  unexpectedly  it  should  turn  out  that  the  public  interest  was  injuri- 
ously affected.  We  do  not  suggest  that  a  corporation  can  relieve  it- 
self of  the  performance  of  its  duties  to  the  public  under  its  franchise ; 
but  only  that  details  of  administration,  not  inconsistent  with  the  legis- 
lative policy  of  the  commonwealth,  may  be  left  to  the  corporation,  so 
long  as  adequate  provision  is  made  for  the  public.  We  go  no  further 
than  to  say  that,  under  conditions  like  the  present,  the  public  has  no 
grievance  which  the  court  will  recognize. 

We  do  not  think  it  fatal  to  the  defence  that  the  arrangement  before 
us  includes,  with  the  undeveloped  territory  into  which  electric  lighting 
is  expected  to  be  extended,  a  street  or  streets  in  which  lioth  companies 
had  run  wires  previously.  The  same  principle  applies  in  both  cases. 
In  neither  are  the  consumers  left  at  the  mercy  of  a  monopoly. 

The  principal  reasons  which  moved  the  courts  to  their  decisions  in 
Portland  Natural  Gas  Co.  v.  State,  135  Ind.  54,  34  N.  E.  818,  21 
L.  R.  A.  639,  in  Brunswick  Gaslight  Co.  v.  United  Gas,  Fuel  &  Light 
Co.,  85  Me.  532,  27  Atl.  525,  35  Am.  St.  Rep.  385,  and  in  some  of  the 
other  cases  above  cited,  are  entirely  wanting  in  the  present  case. 

In  Com.  V.  Fitchburg  Railroad  Co.,  12  Gray,  180,  and  in  People  v. 
Rome,  etc..  Railroad  Co.,  103  N.  Y.  95,  8  N.  E.  369,  a  railroad  corpo- 
ration was  allowed  to  discontinue  a  part  of  the  public  service  that  pre- 
viousl}'  had  been  rendered  under  its  franchise.  It  was  justified  on  the 
ground  that  the  public  interest  did  not  longer  require  the  service.  The 
principle  which  lies  at  the  foundation  of  those  decisions  is  equally  ap- 
plicable to  the  present  case.  See,  also,  Crane  v.  Northwestern  Railroad 
Co.,  74  Iowa,  330,  37  N.  W.  397,  7  Am.  St.  Rep.  479  ;  San  Antonio 
Street  Railway  Co.  v.  State,  90  Tex.  520,  39  S.  W.  926,  35  L.  R.  A. 
662,  59  Am.  St.  Rep.  834;  BuUard  v.  American  Express  Co.,  107 
Mich.  695,  65  N.  W.  551,  33  L.  R.  A.  66,  61  Am.  St.  Rep.  358. 

In  each  case  the  entry  must  be : 

Petition  dismissed. 


VAN  DYKE  V.   GEARY  ET  AL.   CORP.   COMMISSION  OF  ARIZONA.       127 

VAN  DYKE  V.  GEARY  et  al.  CORPORATION 
COMMISSION  OF  ARIZONA. 

Supreme  Court  of  the  United  States,  1917. 

[244  U.  S.  39.1] 

Mr.  Justice  Brandeis  delivered  the  opinion  of  the  court. 

The  Van  Dyke  system  appears  to  be  the  only  water  supply  of  the 
inhabitants  of  the  original  town  of  Miami  (not  including  the  "addi- 
tions")- The  number  of  water  takers  is  not  shown.  But  it  appears 
that  the  large  consumers  who  used  meters  numbered,  at  the  time  of 
the  commission's  investigation,  675,  yielding  a  revenue  of  $11,378.10; 
and  that  the  number  of  small  takers  must  have  been  much  larger, 
since  the  revenue  derived  from  the  flat  rates  was  $14,517.35.  "Prop- 
erty does  become  clothed  with  a  pubhc  interest  when  used  in  a  manner 
to  make  it  of  public  consequence,  and  affect  the  community  at  large." 
Munn  V.  Illinois,  94  U.  S.  113,  126.  The  property  here  in  question 
was  devoted  by  its  owners  to  supplying  a  large  community  with  a 
prime  necessity  of  life.  That  Mrs.  Van  Dyke  pumps  the  water  on 
her  own  land,  stores  it  in  tanks  on  her  own  land  and  thence  conducts 
it  through  pipes  all  upon  her  own  land  (the  strips  reserved  in  the 
streets  for  conduits  being  owned  by  her),  and  delivers  it  to  pm^chasers 
at  the  boundary  line  between  her  and  their  properties;  and  that  lot 
purchasers  bought  with  the  understanding  that  they  might  purchase 
water  from  Mrs.  Van  Dyke*s  water  system  at  rates  fixed  by  her  —  are 
all  facts  of  no  significance;  for  the  character  and  extent  of  the  use 
make  it  pubhc;  and  since  the  service  is  a  public  one  the  rates  are  sub- 
ject to  regulation. 

Counsel  contend  that  tne  use  is  not  pubhc,  because  water  is  fur- 
nished only  to  particular  individuals  in  fulfillment  of  private  contracts 
made  with  the  purchasers  of  townsite  lots.  But  there  is  nothing  in 
the  record  to  indicate  that  such  is  the  fact.  Purchasers  seem  to  have 
bought  merely  with  the  oral  understanding  that  water  could  be  se- 
cured from  the  Van  Dyke  system.  Affidavits  filed  by  appellants  state 
expressly  that  their  water  system  is  operated  "  for  the  purpose  of  sup- 
plying the  residents  and  inhabitants  of  said  Miami  Townsite  with  water, 
and  not  for  the  purpose  of  supplying  persons  outside  of  said  townsite, 
or  the  public  generally  with  water."  The  offer  thus  is  to  supply  all  the 
"inhabitants"  within  the  given  area;  and  that  of  course  includes  sub- 
vendees,  tenants  and  others  with  whom  the  Van  Dykes  had  no  contract 
relations.  The  fact  that  the  service  is  limited  to  a  part  of  the  town  of 
Miami  does  not  prevent  the  water  system  from  being  a  public  utility. 

*  The  first  part  of  the  opinion  is  omitted.  —  Ed. 


128  KING  V.  LUELLIN. 


CHAPTER  III. 

OBLIGATIONS   OF   PUBLIC   DUTY. 


CROSS  V.   ANDREWS. 
Queen's  Bench,  1598. 

[Cro.  Eliz.  622.] 

Action  upon  the  case  against  an  innkeeper  of  Stratton-Audley  in 
the  Count}'  of  Oxon.  And  declares  upon  the  common  custom  of  the 
realm,  that  an  innkeeper  should  keep  the  goods  of  his  guests  safeh',  &c. 
The  defendant  pleaded,  that  when  the  plaintiff  lodged  with  him,  he  was 
sick,  and  of  now  sane  memory  by  occasion  of  his  sickness  whereof  he  then 
languished.  It  was  thereupon  demurred  ;  and  adjudged  without  argu- 
ment for  the  plaintiff.  For  the  defendant,  if  he  will  keep  an  inn,  ought 
at  his  peril  to  keep  safely  his  guests' goods ;  and  although  he  be  sick, 
his  servants  then  ought  carefully  to  look  to  them.  And  to  sa}'  he  is  of 
won  sane  memory,  it  lieth  not  in  him  to  disable  himself,  no  more  than 
in  debt  upon  an  obligation.  Wherefore  it  was  adjudged  for  the 
plaintiff. 


KING  V.  LUELLIN. 
Kmo's  Bench,  1703. 

[12  Mod.  445.] 

The  defendant  was  master  of  the  Bell  Inn,  in  Bristol.  He  was  in- 
dicted for  not  receiving  one  taken  ill  with  the  smallpox ;  and  it  was 
quashed  for  not  saying  he  was  a  traveller. 


REX   V.   IVENS.  X29 


REX  V.  IVENS. 

Monmouth  Assizes,   1835. 

[7  C.  ^  P.  213.] 

Indictment  against  the  defendant,  as  an  innkeeper,  for  not  receiving 
Mr.  Samuel  Probj'n  Williams  as  a  guest  at  his  inn,  and  also  for  refus- 
ing to  take  his  horse.  The  first  count  of  the  indictment  averred  that 
the  prosecutor  had  offered  to  pay  a  reasonable  sum  for  his  lodgings  ; 
and  the  first  and  second  counts  both  stated  that  there  was  room  in  the 
inn.  The  third  count  omitted  these  allegations,  and  also  omitted  all 
mention  of  the  horse.  The  fourth  count  was  similar  to  the  third,  but 
in  a  more  general  form.  I*lea  —  Not  guilty. 

Coleridge,  J.  (in  summing  up).  The  facts  in  this  case  do  not  ap- 
pear to  be  much  in  dispute  ;  and  though  I  do  not  recollect  to  have  ever 
heard  of  such  an  indictment  having  been  tried  before,  the  law  applicable 
to  this  case  is  this :  —  that  an  indictment  lies  against  an  innkeeper  who 
refuses  to  receive  a  guest,  he  having  at  the  time  room  in  his  house ; 
and  either  the  price  of  the  guest's  entertainment  being  tendered  to 
him,  or  such  circumstance  occurring  as  will  dispense  with  that  tender. 
This  law  is  founded  in  good  sense.  The  innkeeper  is  not  to  select  his 
guests.  He  has  no  right  to  say  to  one,  you  shall  come  into  my  inn, 
and  to  another  you  shall  not,  as  every  one  coming  and  conducting  him- 
self in  a  proper  manner  has  a  right  to  be  received  ;  and  for  this  pur- 
pose  innkeepers  are  a  sort^^ofjinhlin  sftrvanta,  tl^pty  havinp;  in  return  a 
kind  of  privilege  of  entertaining  travellers,  and  supplying  them  with 
what  they  want.  It  is  said  in  the  present  case,  that  Mr.  Williams,  the 
prosecutor,  conducted  himself  improperly,  and  therefore  ought  not  to 
have  been  admitted  into  the  house  of  the  defendant.  If  a  person  came 
to  an  inn  drunk,  or  behaved  in  an  indecent  or  improper  manner,  I  am 
of  opinion  that  the  innkeeper  is  not  bound  to  receive  him.  You  will 
consider  whether  Mr.  Williams  did  so  behave  here.  It  is  next  said 
that  he  came  to  the  inn  at  a  late  hour  of  the  night,  when  probably  the 
family  were  gone  to  bed.  Have  we  not  all  knocked  at  inn  doors  at 
late  hours  of  the  night,  and  after  the  family  have  retired  to  rest,  not 
for  the  purpose  of  annoyance,  but  to  get  the  people  up?  In  this  case 
it  further  appeaio,  that  the  wife  of  defendant  has  a  conversation  with 
the  prosecutor,  in  which  she  insists  on  knowing  his  name  and  abode. 
I  think  that  an  innkeeper  has  no  right  to  insist  on  knowing  those  par- 
ticulars ;  and  certainly  you  and  I  would  think  an  innkeeper  very  im- 

9 


>- 


130  BEX  V.  IVENS. 

pertinent,  who  asked  either  the  one  or  the  other  of  any  of  us.  However, 
the  prosecutor  gives  his  name  and  residence ;  and  supposing  that  he 
did  add  the  words  "  and  be  damned  to  jou,"  is  that  a  sufficient 
reason  for  keeping  a  man  out  of  an  inn  who  has  travelled  till  mid- 
night? I  think  that  the  prosecutor  was  not  guilty  of  such  miscon- 
duct as  would  entitle  the  defendant  to  shut  him  out  of  his  house. 
It  has  been  strongly  objected  against  the  prosecutor  b}'  Mr.  Godson, 
that  he  had  been  travelling  on  a  Sunday.  To  make  that  argument  of 
any  avail,  it  must  be  contended  that  travelling  on  a  Sunday  is  illegal. 
It  is  not  so,  although  it  is  what  ought  to  be  avoided  whenever  it  can  be. 
Indeed  there  is  one  thing  which  shows  that  travelling  on  a  Sunday  is 
not  illegal,  which  is,  that  in  many  places  you  pay  additional  toll  at  the 
turnpikes  if  you  pass  through  them  on  a  Sunday,  by  which  the  legisla- 
ture plainly  contemplates  travelling  on  a  Sunday  as  a  thing  not  illegal. 
I  do  not  encourage  travelling  on  Sundaj's,  but  still  it  is  not  illegal. 
With  respect  to  the  non-tender  of  money  by  the  prosecutor,  it  is  now 
a  custom  so  universal  with  innkeepers  to  trust  that  a  person  will  pay 
before  he  leaves  an  inn,  that  it  cannot  be  necessary  for  a  guest  to  ten- 
der money  before  he  goes  into  an  inn  ;  indeed,  in  the  present  case,  no 
objection  was  made  that  Mr.  Williams  did  not  make  a  tender ;  and 
they  did  not  even  insinuate  that  the}'  had  any  suspicion  that  he  could 
not  pay  for  whatever  entertainment  might  be  furnished  to  him.  I  think, 
therefore,  that  that  cannot  be  set  up  as  a  defence.  It  however  remains 
for  me  next  to  consider  the  case  with  respect  to  the  hour  of  the  night 
at  which  Mr.  Williams  applied  for  admission ;  and  the  opinion  which 
I  have  formed  is,  that  the  lateness  of  the  hour  is  no  excuse  to  the  de- 
fendant for  refusing  to  receive  the  prosecutor  into  his  inn.  Why  are 
inns  established  ?  For  the  reception  of  travellers,  who  are  often  very 
far  distant  from  their  own  homes.  Now,  at  what  time  is  it  most  essen- 
tial  that  travellers  should  not  be  denied  admission  into  the  inns?  I 
should  say  when  they  are  benighted,  and  when,  from  any  casualty,  or 
from  the  badness  of  the  roads,  they  arrive  at  an  inn  at  a  very  late 
hour.  Indeed,  in  former  times,  when  the  roads  were  much  worse,  and 
were  much  infested  with  robbers,  a  late  hour  of  the  night  was  the  time, 
of  all  others,  at  which  the  traveller  most  required  to  be  received  into 
an  inn.  I  think,  therefore,  that  if  the  traveller  conducts  himself  prop- 
erly, the  innkeeper  is  bound  to  admit  him,  at  whatever  hour  of  the 
night  he  may  arrive.  The  only  other  question  in  this  case  is,  whether 
the  defendant's  inn  was  full.  There  is  no  distinct  evidence  on  the  part 
of  the  prosecution  that  it  was  not.  But  I  think  the  conduct  of  the 
parties  shows  that  the  inn  was  not  full ;  because,  if  it  had  been,  there 
could  have  been  no  use  in  the  landlady  asking  the  prosecutor  his  name, 
and  saying,  that  if  he  would  tell  it,  she  would  ring  for  one  of  the 
servants.  Verdict  —  Chcilty. 

Park,  J.,  sentenced  the  defendant  to  pay  a  fine  of  20«.* 

1  Compare :  Hawthorne  v.  Hammond,  1  C.  &  K.  404 ;  Queen  v.  Rymer,  2  Q.  B.  D. 
136;  KUten  v.  Hildebrand,  9  B.  Mod.  72;  Atwater  r.  Sawyer,  76  Me.  539.  —Ed. 


LAMOND  V.   THE  GOEDON  HOTELS.  131 


LAMOND   V.   THE  GORDON  HOTELS,    LIMITED. 
Court  of  Appeal,  1897. 

[1897.  1   Q.  B.  541.1] 

Lord  Esher,  M.  R.  The  plaintiff  went  to  a  hotel  iu  Brighton,  and 
went  there  with  the  intention  of  staying  at  the  hotel.  She  was  taken 
in  and  given  rooms,  and  she  stayed  there  for  a  period  of  ten  months. 
It  was  then  intimated  to  her  that  the  direction  wished  her  to  leave, 
but  this  she  refused  to  do.  Then  notice  was  given  to  her  requiring  her 
to  leave,  and  as  she  still  refused,  advantage  was  taken  of  her  being 
out  of  the  hotel,  and  her  things  were  brought  down  and  put  outside, 
and  on  her  return  she  was  refused  admittance. 

The  foundation  of  her  action  is  that  she  was  not  allowed  to  stay  on 
at  the  hotel.  It  was  tried  before  the  county  court  judge  of  Brighton 
without  a  jury,  and  he  has  arrived  at  certain  conclusions  of  fact.  He 
has  found  that  the  plaintiff  was  taken  into  the  hotel  as  a  traveller  ac- 
cording to  the  custom  of  England,  and  to  find  that  he  must  have  also 
found  that  the  hotel  carried  on  business  according  to  the  custom,  so 
that  the  proprietors  were  bound  to  take  in  every  one  that  came  and 
asked  for  lodgings,  if  there  was  room  for  them.  He  finds  that  she 
stayed  so  long  at  the  hotel  that  at  last  notice  was  given  to  her  to  leave ; 
and  his  findings  are  equivalent  to  saying  that,  when  notice  was  given, 
she  was  no  longer  a  traveller,  nor  entitled  to  be  treated  as  such  under 
the  custom.     If  this  is  a  question  of  fact  it  is  not  subject  to  appeal. 

The  learned  judge  must  have  found  that  the  proprietors  of  the  hotel 
held  it  out  to  the  public  as  an  inn  that  would  take  in  any  traveller  who 
came,  provided  there  was  room  to  do  so.  I  think  it  is  a  question  of 
fact  what  was  the  intention  of  those  who  carried  on  the  business  of  the 
hotel,  and  the  county  court  judge  has  stated  what  that  intention  was. 
Such  a  finding  in  this  case  does  not  affect  the  position  of  other  hotels, 
and  I  think  it  is  open  to  argument  that  the  large  London  hotels  do  not 
hold  themselves  out  as  receiving  customers  according  to  the  custom  of 
England  —  at  any  rate,  such  a  matter  would  be  a  question  of  fact. 

Then  comes  the  question  whether  the  plaintiff  went  to  the  hotel  in 
the  capacity  of  a  traveller.  That  is  also  a  question  of  fact  which  the 
county  court  judge  has  determined. 

The  plaintiff  has  brought  this  action  relying  on  the  custom  of  Eng- 
land, and  not  on  the  point  raised  now  for  the  first  time  of  a  contract 
outside  the  custom.  The  question  is  whether  it  is  the  law  that  if  a  per- 
son goes  to  an  inn  in  the  character  of  a  traveller  that  person  retains 
the  same  character  for  any  time  however  long.  If  so,  the  law  would 
be  contrary  to  the  truth ;  and  I  will  never  submit,  unless  compelled  by 
an  Act  of  Parliament,  to  say  that  a  thing  shall  be  deemed  to  be  that 

1  Opinions  only  are  printed.  — Ed. 


132  LAMOND   V.   THE   GORDON   HOTELS. 

which  it  is  not.  Therefore,  the  question  whether  a  person  has  ceased 
to  be  a  traveller  seems  to  me  again  to  be  a  question  of  fact,  and  mere 
length  of  residence  is  not  decisive  of  the  matter,  because  there  may  be 
circumstances  which  show  that  the  length  of  the  sta}'  does  not  prevent 
the  guest  being  a  traveller,  as,  for  instance,  where  it  arises  from  illness ; 
but  it  is  wrong  to  say  that  length  of  time  is  not  one  of  the  circum- 
stances to  be  taken  into  account  in  determining  whether  the  guest  has 
retained  his  character  of  traveller.  In  my  opinion  there  was  in  this 
case  evidence  of  facts  which  justifled  the  county  court  judge  in  saying 
that  the  plaintiff  had  ceased  to  be  a  traveller.  If  this  is  a  question  of 
fact,  there  is  no  appeal  from  the  decision  of  the  judge ;  but  even  if 
there  were  an  appeal,  I  agree  with  the  conclusion  to  which  he  came, 
that  the  evidence  showed  that  the  plaintiff  was  no  longer  a  traveller. 
Her  case,  therefore,  was  not  within  the  custom,  and  the  relations  be- 
tween her  and  the  innkeepers  were  not  under  the  custouS. 

It  is  put  as  an  objection  that  if  the  relation  between  them  is  changed 
the  rights  of  the  innkeeper  against  the  plaintiff  had  ceased.  I  do  not 
say  whether  this  is  so,  but  the  argument  is  not  suflScient  to  prevent  the 
conclusion  at  which  I  have  arrived,  that  the  relation  may  be  altered 
from  the  original  one  of  traveller  and  innkeeper. 

Then  we  were  asked  to  imply  a  contract  or  agreement  by  both  par- 
ties, b}'  which  the  innkeeper  contracted  to  lodge  the  plaintiff  so  long 
as  she  wished  to  staj',  upon  the  same  terms  as  those  upon  which  she 
was  taken  in,  so  that  she  was  under  no  obligation  to  sta}-  an  hour  longer 
than  she  chose,  but  he  was  bound  to  keep  her  so  long  as  she  liked  to 
remain.  To  my  mind  such  a  contract  cannot  have  been  the  intention 
of  the  parties  when  the  relationship  commenced. 

I  think,  therefore,  there  is  no  ground  for  disturbing  the  decision  in 
this  case,  and  the  appeal  must  be  dismissed. 

LopES,  L.  J.  The  law  of  England  imposed  exceptional  liabilities  on 
an  innkeeper  and  gave  him  exceptional  rights.  But  these  exceptional 
liabilities  and  rights  applied  onl}'  as  between  the  innkeeper  and  those 
persons  who  came  to  the  inn  in  the  character  of  travellers.  This  is 
shown  clearly  by  the  old  form  of  writ  against  an  innkeeper  for  refusing 
to  supply  food  and  lodging,  and  from  the  old  form  of  declaration, 
which  will  be  found  in  BuUen  and  Leake's  Precedents  of  Pleading. 
The  question  before  us  is,  in  what  character  was  the  plaintiff  living 
at  the  inn  when  she  received  notice  to  quit  it  ?  Was  she  there  as  a  travel- 
ler, or  had  she  ceased  to  be  a  traveller  and  remained  in  some  other 
capacity  ?  I  cannot  help  thinking  that  this  is  a  question  of  fact  on 
which  the  finding  of  the  judge  was  conclusive  ;  but  I  do  not  desire  to 
rest  my  judgment  on  that  ground,  which  may  be  regarded  rather  as 
technical.  In  my  opinion  there  is  no  such  rule  as  is  suggested,  that  a 
person  who  comes  to  an  inn  as  a  traveller  and  remains  there  must  re- 
main as  a  traveller.  In  my  opinion  the  learned  judge  was  right  when 
he  found  that  the  plaintiff  when  she  was  required  to  leave  had  ceased  to 
be  a  traveller,  and  that,  therefore,  the  innkeeper  was  fully  justified, 


LAMOND  V.   THE  GORDON  HOTELS.  133 

after  giving  reasonable  notice,  in  acting  as  he  did.     His  judgment  and 
that  of  the  Divisional  Court  supporting  it  should  be  affirmed. 

Chitty,  L.  J.  The  plaintiff's  claim  is  founded  on  the  liability  im- 
posed by  the  general  custom  of  England  on  the  keeper  of  a  common 
inn.  There  is  no  question  of  contract  raised  between  the  parties.  The 
county  court  judge  found,  either  as  a  question  of  fact  or  a  mixed  ques- 
tion of  law  and  fact,  that  the  defendants'  hotel  was  an  inn,  and  from 
that  finding  there  is  no  appeal.  Starting  from  that  point,  he  con- 
sidered whether  the  plaintiff,  after  being  in  the  hotel  for  a  period  of 
ten  months  and  considering  all  the  circumstances  of  the  case,  still 
retained  the  character  of  a  traveller  which  he  attributed  to  her  when 
she  first  went  to  the  inn  ;  and  he  decided,  and  this  also  may  be  a  ques- 
tion of  mixed  fact  and  law,  that  she  did  not  retain  it.  If  this  is  a 
question  of  fact  there  is  nothing  more  to  be  said  on  the  appeal.  The 
plaintiff's  counsel,  however,  tried  to  treat  it  as  a  question  of  law ;  and 
turn  his  proposition  about  as  you  will,  it  still  comes  to  this,  that  if  a 
person  once  enters  an  inn  as  a  traveller  he  can  remain  there  in  that 
character  as  long  as  he  pleases.  With  reference  to  this  proposition, 
though  there  are  many  authorities  on  the  question  of  the  common-law 
liability  of  an  innkeeper,  no  suggestion  to  this  effect  can  be  found,  and 
in  my  opinion  it  is  not  the  law.  It  may  be  a  difficult  question  to  de- 
termine in  any  case  when  the  character  of  traveller  ceases  and  that  of 
lodger  or  boarder  begins ;  but  in  this  present  case  I  think  the  judge 
was  entitled  on  the  evidence  to  come  to  the  conclusion  at  which  he 
arrived,  that  the  plaintiff"  had  ceased  to  be  a  traveller.  The  custom  of 
England  does  not  extend  to  persons  who  are  in  an  inn  as  lodgers  or 
boarders,  and  the  length  of  time  that  a  guest  has  stayed  is  a  material 
ingredient  in  determining  such  a  question  as  was  before  the  judge.  If 
the  character  of  traveller  is  continuous,  it  would  follow  that  the  plaintiff" 
would  have  a  right  to  reside  at  the  hotel  all  her  life,  provided  she  con- 
formed to  the  regulations  and  paid  her  bills,  but  that  she  could  leave 
at  any  moment,  while  the  landlord  would  be  bound  to  provide  lodging 
without  any  power  to  give  notice  to  her  to  leave.  This  is  a  startling 
proposition,  and,  as  it  is  moreover  unsupported  by  authority,  I  cannot 
assent  to  it.  It  is  hardly  necessary  to  say  anything  about  the  sug- 
gested implied  contract.  The  action  was  not  founded  on  it,  and  the 
proposition  itself  will  not  bear  examination.  For  these  reasons  I  con- 
cur in  the  judgments  already  delivered. 

Appeal  dismissed.^ 

1  Compare:  Moore  v.  Beech  Co.,  87  Cal.  483 ;  Daris  v.  Gay,  141  Mass.  531  ;  Homer 
V.  Harvey,  3  N.  M.  197  ;  Howth  v.  Franklin,  20  Tex.  798!;  Clary  v.  Willey,  49  Vt.  55. 
—Ed. 


134  FLEMING   V.   MONTGOMERY   LIGHT  CXJt 

FLEMING  V.  MONTGOMERY  LIGHT   CO. 
Supreme  Cocrt  of  Alabama,  1892. 

[100  Ala.  657.] 

Coleman,  J.  Appellant  as  complainant  filed  ihe  present  bill  for  the 
purpose  of  enjoining  the  respondent,  the  Montgomer}'  Light  Company, 
from  removing  its  gas  meter  from  the  premises  of  complainant,  and  to 
enjoin  the  respondent  "  from  refusing  to  furnish  jour  orator  gas." 
Complainant's  rights  are  very  clearly  set  forth  in  the  bill  and  grow- 
out  of  an  agreement  entered  into  in  the  year  1852  between  the  City  of 
Montgomery  and  the  John  Jeffrey  Company,  by  the  terms  of  which 
the  exclusive  right  and  privilege  of  manufacturing  and  supplying  gas 
for  a  period  of  fifty  years  for  the  city  of  Montgomery  and  its  inhabi- 
tants was  granted  to  the  John  Jeffrey  Company,  the  said  company 
agreeing  on  its  part,  "  at  all  times  to  supply  the  inhabitants  of  the 
City  of  Montgomery,  for  private  use,  with  a  suflBcient  quantity  of  gas 
of  the  most  approved  qualit}',"  The  Montgomerj-  Light  Companj'  has 
succeeded  to  all  the  privileges  and  assumed  all  the  obligations  of  the 
John  Jeffrey  Company.  Stripped  of  the  statement  of  facts  necessary 
to  present  the  complainant's  case  in  an  intelligible  form,  the  one 
question  raised  is,  whether  the  assumption  to  supply  the  inhabitants 
of  the  city  of  Montgomery  with  gas,  imposes  the  legal  duty  on  the 
company  to  furnish  gas  meters  and  keep  on  hand  a  sufficient  quantity 
of  gas,  for  inhabitants  who  do  not  use  or  consume  gas,  but  who  de- 
sire to  be  supplied  "  with  meters  and  connections  with  the  defend- 
ant's gas  pipes  so  that  in  case  an  accident,  which  is  apt  to  occur, 
should  happen,  they  could  use  the  gas." 

A  statement  of  the  proposition  suggests  its  answer.  There  can  be 
no  difference  in  principle  between  the  case  stated  and  the  one  in  the 
bill,  in  which  it  is  shown  that  at  one  time  complainant  used  gas  for 
lights,  but  at  the  time  of  filing  the  bill,  and  previous  thereto,  com- 
plainant used  in  his  building  electric  lights  furnished  by  a  different 
company,  or  corporation,  and  was  not  a  patron  of  defendant  corapan}*, 
and  the  injunction  was  to  make  provision  "to  use  gas"  "in  case  an 
accident  should  happen  to  the  electric  lights  in  use  by  orator." 

Plaintiff's  contention  is,  that  although  he  has  made  other  arrange- 
ments with  a  different  company  for  light,  yet  it  is  the  duty  of  respond- 
ent to  keep  on  hand  gas  and  electricity  with  proper  meters  and  con- 
nections and  electric  burners  "  in  case  of  an  accident "  to  the  company 
which  has  contracted  to  supply  him,  and  that  too  without  any  cor- 
responding obligation  on  his  part  to  use  the  gas  of  the  defendant. 
We  can  find  no  such  provision  in  the  contract  between  the  city  and 
respondent,  expressed  or  im|)lied.  There  is  no  equality  or  equity  in 
such  a  proposition.  It  is  hardly  necessary  to  cite  authorities,  but  we 
refer  to  the  following :  Williams  v.  Mutual  Gas  Co.,  50  Amer.  Rep. 
266;  52  Mich.  499. 

There  is  no  error  in  the  record.  Affirmed. 


PUBLIC    SERVICE    CORP.    ET   AL.    V.   AMERICAN    LIGHTING   CO.      135 


PUBLIC   SERVICE   CORPORATION  et  al.  v.  AMERICAN 
LIGHTING  COMPANY. 

Court  of  Chancery  of  New  Jersey,  1904. 

[67  N.  J.  Eq.  122.1] 

Pitney,  V.  C.  The  complainant,  the  Public  Service  Corporation,  is 
the  lessee  for  a  long  term  of  years,  and  in  the  possession  as  such,  of 
the  property  of  the  other  complainants,  the  Hudson  County  Gas  Com- 
pany and  the  Jersey  City  Gas  Light  Company.  The  complainants  own 
and  control  and  have  been  in  the  undisputed  possession,  for  many 
years,  of  a  gas  manufacturing  and  distributing  plant  in  the  city  of 
Jersey  City,  which  distributing  plant  covers  the  entire  cit}',  and  the 
companies  are  enjoying  the  franchise  of  laying  and  maintaining  their 
gas  mains  under  the  surface  of  the  streets  of  that  cit}'.  They  have 
for  many  years  supplied  the  householding  inhabitants  with  gas  for 
domestic  use,  and  have  also,  for  a  like  period  of  time,  supplied  the 
municipality"  with  gas  for  street  lighting  purposes.  .  .  .  The  defendant, 
the  American  Lighting  Company,  is  a  corporation  of  the  State  of  Mary- 
laud,  and  has  no  franchise  whatever  in  the  State  of  New  Jersey  or  in 
the  city  of  Jersey  City;  nor  does  it  pretend  to  have  an}'.  It  is  simplj' 
the  proprietor  of  what  it  claims  to  be  a  peculiarly  meritorious  light  pro- 
ducing lamp,  or  burner,  which  it  claims  will  produce  a  much  greater 
amount  of  light  from  the  same  amount  of  gas  than  the  burner  heretofore 
in  use  by  the  complainants  and  known  as  the  "  Welsbach  burner."  By 
its  affidavits  it  states  that  it  has  recently  introduced  its  burners  into 
several  cities,  including  Baltimore,  with  great  success.  .  .  .  This  being 
its  sole  business,  and,  it  not  being  either  a  citizen  or  householder  of 
Jersey  City,  it  has,  in  my  judgment,  no  standing  whatever,  in  its  own 
right,  to  demand  and  receive  from  the  complainants  a  supply  of  gas  for 
any  purpose  whatever.  ,  .  .  I  am  entirely  of  the  opinion  that  the  defend- 
ant, the  Lighting  Company,  has  no  standing  whatever,  in  its  own  right, 
to  demand  from  the  complainants  a  supply  of  gas.  For  the  simple 
reason,  above  stated,  that  it  is  neither  a  householder  nor  a  resident  of 
Jersey  City,  and  the  obligation  which  is  imposed  upon  complainants 
by  reason  of  their  enjoyment  of  a  public  franchise  of  laying  mains  in 
the  streets  to  furnish  gas,  extending  only  to  residential  citizens  of  the 
city  and  to  the  municipality.  It  is  quite  absurd  to  say  that  any  person 
who  might  happen  to  be  w'alking  along  the  street,  and  yet  be  destitute 
of  any  local  habitation  within  the  corporate  limits  of  Jersey  City  has 
the  least  right  to  demand  a  supply  of  gas  from  the  complainants. 

1  This  abstract  of  this  case  is  taken  from  the  opinion  of  Bradford,  D.  J.,  in  Amer* 
ican  Co.  v.  Public  Service  Co.,  132  Fed.  794.  —  Ed. 


136  STATE   EX   EEL.  MILSTEAD  V.   BUTTE  CITY  WATER  CO. 


STATE  EX  REL.  MILSTEAD  v.    BUTTE   CITY  WATER 
COMPANY. 

Supreme  Court  of  Montana,  1896. 

[18  Mont.  199A] 

The  appellant  is  a  water  company,  engaged  in  supplying  the  inhabi- 
tants of  the  city  of  Butte  with  water,  under  its  franchise.  The  city 
gave  the  corporation  the  right  to  lay  its  mains  in  its  streets  and  alleys. 
The  company,  on  the  other  hand,  is  required  to  supplj'  the  inhabitants 
of  the  city  of  Butte  with  water  for  general  use,  at  prices  specified  in 
the  franchise  granted.  The  relator  is  an  inhabitant  of  Butte,  occup}- 
ing  premises  wholl}'  without  water  for  general  use,  and  there  are  no 
other  means  by  which  water  for  his  house  may  be  secured,  except  from 
the  appellant  corporation.  Ought  the  appellant  to  be  allowed  to  refuse 
his  tender  for  water  in  advance,  and  to  refuse  him  water  upon  the 
ground  that,  "  b}-  virtue  of  its  rules  and  regulations  adopted,  it  can 
deal  only  with  the  owners  of  the  property  requiring  water  to  be  turned 
on,  or  the  agents  of  said  owners  ?  "     We  say  not. 

The  performance  of  the  duty  the  company  undertook  when  it  ac- 
cepted the  franchise  granted  was  to  supply-  the  inhabitants  of  the  city 
with  water.  "  A  waterworks  company  is  a  quasi  public  corporation. 
It  must  supply  water  to  all  who  apply  therefor  and  ofiFer  to  pay  rents." 
(Cook  on  Stock,  Stockh.  &  Corp.  Law,  §  932.)  The  account  of  which 
the  grant  was  given  was  a  public  purpose.  (Lumbard  v.  Stearns, 
4  Cush.  61.)  Therefore,  *'  the  grant  is  subject  to  an  implied  condition 
that  the  companj'  shall  assume  an  obligation  to  fulfill  the  public  pur- 
pose on  account  of  which  the  grant  was  made."  (Morawetz  on  Priv. 
Corp.  §  1129.) 

The  view  that  supplying  a  city  and  its  inhabitants  with  water  for 
general  purposes  is  a  business  of  a  public  nature,  and  meets  a  general 
necessit}',  is  sustained  b}'  the  great  weight  of  authority  reviewed  in  a 
learned  opinion  of  Lord,  C.  J.,  in  Haugen  v.  Water  Co.  (Or.),  28  Pac. 
244.  It  was  there  said  :  "  The  defendant,  by  incorporating  under  the 
statute,  for  the  purpose  of  supplying  water  to  the  cit}'  and  its  inhabi- 
tants, undertook  a  business  which  it  could  not  have  carried  on  without 
the  grant  of  eminent  domain  over  the  streets  in  which  to  lay  its  pipes. 
It  was  by  incorporating  for  this  purpose,  and  in  accepting  the  grant,  it 
became  invested  with  a  franchise  belonging  to  the  public,  and  not  en- 
joyed of  common  right,  for  the  accomplishment  of  public  objects,  and 
the  promotion  of  public  convenience  and  comfort.  Its  business  was 
not  of  a  private,  but  of  public,  nature,  and  designed,  under  the  condi- 
tions of  the  grant  as  well  for  the  benefit  of  the  public  as  the  company." 

*  The  principal  point  is  printed.  —  Ed. 


NICHOLSON  V.  NEW  YORK  CITY  RAILWAY  COMPANY.  137 

Certainly,  the  company  may  make  reasonable  rules  and  regulations. 
Doubtless  it  may  require  payments  in  advance  for  a  reasonable  length 
of  time.  It  may,  within  reasonable  limitations,  cut  off  the  supply  of 
those  who  refuse  to  pay  water  rents  due.  It  ma}^  make  regulations  au- 
thorizing an  examination  of  meters  in  houses  at  reasonable  times,  or 
adopt  other  reasonable  rules  for  the  regulation  of  its  affairs.  But  it 
has  no  power  to  abridge  the  obligations,  assumed  b}^  it  in  accepting 
its  franchise,  to  supply  an  inhabitant  of  Butte  with  water,  if  he  pays 
them  for  it  in  advance,  and  is  a  tenant  in  the  possession  and  occupancy 
of  a  house  in  need  of  water  for  general  purposes. 

Whether  the  owner  has  made  a  contract  with  the  corporation  to  hold 
himself  personally  liable  or  not,  or  whether  he  has  signed  any  paper 
agreeing  to  subject  his  property  to  a  lien  for  water  rents,  we  will  not 
discuss  in  this  case.  The  water  company  in  no  case,  however,  can  go 
beyond  the  powers  granted  to  it,  and  such  powers  must  be  exercised  in 
a  reasonable  manner ;  and,  if  it  has  adopted  a  by-law  that  is  in  conflict 
with  its  franchise,  which  may  be  termed  its  constitution,  or  is  unreason- 
able or  oppressive,  the  subordinate  rule  or  by-law  will  be  set  aside. 
(Thompson  on  Corp.  §  1010  et  seq.) 

This  relator  was  entitled  to  water,  and  to  a  receipt  for  his  payment, 
issued  directly  to  him,  and  to  have  the  amount  of  his  payment  credited 
to  him  alone,  and  the  b^'-law  pleaded  by  the  company  is,  as  to  him, 
clearly  unreasonable ;  and  it  is  immaterial  to  his  rights  whether  the 
owner  had  any  agreement  with  the  company  or  not,  or  whether,  as 
tenant,  he  knew  of  the  existence  of  any  such  agreement.  The  duty  of 
the  company,  under  its  franchise,  and  undertaken  to  be  fulfilled,  must 
be  performed.     The  order  appealed  from  is  afllrmed. 

Affirmed. 


NICHOLSON  V.  NEW  YORK  CITY  RAILWAY  COMPANY. 

Supreme  Court  of  New  York,  Appellate  Division,  1907. 

[118  iNT.  y.  App.  Div.  858.] 

McLaughlin,  J.  This  action  was  brought  in  the  Municipal  Court 
of  the  city  of  New  York  to  recover  a  penalty  of  fifty  dollars  for  the 
defendant's  refusal  to  furnish  the  plaintiff  a  transfer  between  different 
lines  of  its  street  surface  railroads  in  the  cit}'^  of  New  York  in  alleged 
violation  of  section  104  of  the  Railroad  Law  (Laws  of  1890,  chap.  565, 
§  105,  as  renumbered  amd.  by  Laws  of  1892,  chap.  676). 

Upon  the  trial,  at  the  close  of  plaintiff's  case,  the  defendant  moved 
that  the  complaint  be  dismissed  upon  the  ground,  among  others, 
that  the  plaintiff,  at  the  time  the  transfer'  was  refused,  was  not  a  pas- 
senger in  good  faith  seeking  to  be  transferred  to  a  connecting  line  of 


138  NICHOLSON   V.   NEW  YORK  CITY  RAILWAY   COMPANY. 

defendant's  road ;  that,  on  the  contran',  the  fact  was  uncontradicted 
that  her  sole  purpose  in  asking  for  a  transfer  was  to  bring  an  action  to 
recover  the  penalt}'  in  case  of  its  refusal.  The  motion  was  denied  and 
the  defendant,  after  offering  in  evidence  the  record  in  another  case 
tried  immediately  preceding  this  one,  rested  and  renewed  the  motion 
to  dismiss.  The  motion  was  denied  and  judgment  rendered  in  favor 
of  the  plaintiff  for  the  penalty,  together  with  the  costs,  from  which  the 
defendant  appealed  to  the  Appellate  Term.  There  the  judgment  was 
affirmed,  and,  by  permission,  the  defendant  appeals  to  this  court. 

I  am  of  the  opinion  that  the  determination  of  the  Appellate  Term 
and  the  judgment  of  the  Municipal  Court  should  be  reversed  and  a 
new  trial  ordered.  The  section  of  the  statute  above  referred  to  and 
which  is  relied  upon  as  a  justification  for  the  maintenance  of  this  action, 
reads  as  follows :  "  Every  such  corporation  entering  into  such  contract, 
shall  carry  or  permit  any  other  party  thereto  to  carry,  between  any  two 
points  on  the  railroads  or  portions  thereof  embraced  in  such  contract, 
any  passenger  desiring  to  make  one  continuous  trip  between  such  points 
for  one  single  fare,  not  higher  than  the  fare  lawfully  chargeable  bj' 
either  of  such  corporations  for  an  adult  passenger.  Ever}-  such  corpo- 
ration shall,  upon  demand  and  without  extra  charge,  give  to  each  pas- 
senger paying  one  single  fare,  a  transfer  entitling  such  passenger  to  one 
continuous  trip  to  any  point  or  portion  of  any  railroad  embraced  in 
such  contract,  to  the  end  that  the  public  convenience  may  be  promoted 
by  the  operation  of  the  railroads  embraced  in  such  contract  substan- 
tially as  a  single  railroad  with  a  single  rate  of  fare.  For  every  refusal 
to  compl}-  with  the  requirements  of  this  section,  the  corporation  so  re- 
fusing shall  forfeit  fift}'  dollars  to  the  aggrieved  party.  The  provisions 
of  this  section  shall  only  apply  to  railroads  wholly  within  the  limits  of 
any  one  incorporated  city  or  village."  The  purpose  of  this  statute  is 
set  forth  in  it.  It  is  to  promote  the  public  convenience,  and  that  this 
may  be  accomplished  it  directs  that  the  railroads  embraced  in  any 
contract  referred  to  therein  shall  be  operated  substantially  as  a  single 
road  with  a  single  rate  of  fare.  The  "  public  convenience  "  has  refer- 
ence manifestly  to  passengers  travelling  in  good  faith.  This  is  appar- 
ent from  the  statute  itself,  because  it  commands  that  the  railroad  shall 
carry  for  a  single  fare  between  any  two  points  on  its  roads  "  any 
passenger  desiring  to  make  one  continuous  trip  between  such  points." 
The  plaintiff,  therefore,  in  order  to  maintain  the  action,  had  to  prove 
that  she  became  a  passenger  in  the  first  instance  in  good  faith  and  for 
the  purpose  of  going  to  some  point  on  the  line  to  which  she  wished  to 
be  transferred.  She  not  only  failed  to  prove  this  fact,  but  her  counsel 
frankly  conceded  at  the  trial,  as  he  did  upon  the  oral  argument  of  the 
appeal  in  this  court,  that  her  sole  purpose  in  becoming  a  passenger  was 
to  bring  an  action  for  the  penalty  provided  in  the  statute.  Obviously, 
under  such  circumstances,  the  action  cannot  be  maintained. 

It  will  be  noticed  that  only  a  passenger  who  has  been  "  aggrieved  " 
can  maintain  an  action  to  recover  the  penalt}'.     The  plaintiff  was  not 


NICHOLSON   V.   NEW   YORK    CITY   EAILWAY   COMPANY.  139 

"  aggrieved."  Indeed,  she  would  have  been  disappointed  had  slie  re- 
ceived the  transfer  demanded,  because  in  tliat  event  the  purpose  of  her 
taking  the  car  would  have  been  frustrated.  The  object  of  the  statute, 
as  already-  indicated,  is  to  promote  the  public  convenience.  It  is  not  to 
put  money  in  an  individual's  pocket,  unless  such  individual  comes 
fairly  within  the  provisions  of  the  statute,  viz.,  a  passenger  in  good 
faith  who  has  been  aggrieved  by  the  railroad  company's  refusal  to  give 
a  transfer  to  some  point  on  a  connecting  line  to  which  he  desires  to  go. 
(Myers  v.  Brooklyn  Heights  R.  R.  Co.,  10  App.  Div.  335  ;  Southern 
Pacific  Co.  V.  Robinson,  132  Cal.  408  ;  Jolley  v.  Chicago,  M.  &  St. 
P.  R.  Co.,  119  Iowa,  491.) 

In  Myers  v.  Brooklyn  Heights  R.  R.  Co.  {supra)  the  precise  ques- 
tion here  presented  was  considered  and  a  similar  conclusion  reached. 
The  construction  there  placed  upon  the  statute  was  binding  upon  the 
Appellate  Term  and  might  well  have  been  followed,  but  it  was  not  — 
presumably  because  the  court  was  of  the  opinion  that  it  was  controlled 
by  Fisher  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.  (46.  N.  Y.  644),  but  in  the 
Myers  case  the  reason  why  the  Fisher  case  did  not  apph-  to  an  action 
brought  to  recover  a  penalty  under  section  104  of  the  Railroad  Law 
was  pointed  out.  The  statute  upon  which  the  Fisher  case  rested  (Laws 
of  1587,  chap.  185)  is  materially  different.  That  act  provides  that 
"  any  railroad  company  which  shall  ask  and  receive  a  greater  rate  of 
fare  than  that  allowed  b}-  law,  shall  forfeit  fift}-  dollars,  which  sum  may 
be  recovered,  together  with  the  excess  so  received,  b}'  the  party  paying 
the  same."  Not  a  word  is  said  in  that  statute  about  a  passenger,  but 
it  is  the  party  paying  the  excess  of  fare  who  maj'  maintain  the  action. 
Here,  the  present  statute  is  not  only  limited  to  a  passenger,  but  to  one 
who  desires  to  go  to  some  point  on  the  connecting  line.  The  statute, 
therefore,  as  it  seems  to  me,  by  express  provision  precludes  one  from 
suing  for  a  penalty  who  has  no  intent  to  go  to  a  point  on  the  connect- 
ing line,  but  who  takes  the  ear  merely  for  the  purpose  of  putting  hino- 
self  in  a  position  to  bring  an  action. 

The  determination  of  the  Appellate  Term  and  the  judgment  of  the 
Municipal  Court  must,  therefore,  be  reversed  and  a  new  trial  ordered, 
with  costs  to  appellant  to  abide  event. 

Patterson,  P.  J.,  Houghton,  Scott  and  Lambert,  JJ.,  concurred. 

Determination  and  judgment  reversed,  new  trial  ordered,  costs  to 
appellant  to  abide  event. 


140        FERGUSON  V.   METROPOLITAN  GAS  LIGHT  CO. 


FERGUSON  V.  THE  METROPOLITAN   GAS   LIGHT 
COMPANY. 

New  York  Cojimon  Pleas,  1868. 

[37  How.  Pr.  189.] 

JBy  the  court,  Brady,  J.  The  plaintifif  occupied  one  floor  of  a  dwell- 
ing or  tenement  house  in  this  cit}-.  The  owner  had  put  in  it  the  service 
pipes  for  gas,  according  to  the  regulations  of  the  defendants.  He 
applied  for  gas  which  was  supplied  through  one  meter,  placed  in  the 
cellar  of  the  house.  He  also  applied  for  separate  meters  for  each  floor, 
which  were  not  furnished  bj-  the  defendants,  and  it  would  seem  because 
he  had  not  put  into  the  house  separate  or  independent  service  pipes  for 
each  floor  to  which  the  meter  might  be  connected. 

It  does  not  appear  that  this  application  being  refused,  he  took  any 
steps  to  enforce  his  demand. 

It  is  conceded  that  the  pipes  in  the  house  were  suflScient  to  serve  it 
with  gas,  and  that  gas  could  be  carried  to  all  parts  of  it  through  them. 

Tiie  plaintiff  when  he  became  an  occupant  also  applied  for  gas,  and 
the  defendants  answered  b}'  sa3ing  that  they  had  already  furnished  it  to 
the  building,  and  refused  to  place  a  meter  on  the  plaintiffs  floor  unless 
separate  and  independent  service  pipes  were  provided.  The  plaintiffs 
application  was  not  in  fact  alone  for  gas,  but  for  a  separate  meter  as 
well.  He  wanted  the  meter,  as  he  stated  on  the  trial,  and  the  question 
really  involved  in  this  controversy  is,  whether  the  defendants  were 
bound  to  furnish  it 

The  plaintiff"  sues  for  a  penalty  under  the  sixth  section  of  the  act  of 
1859  (Laws,  p.  698),  which  provides  that  all  gas  companies  shall  supply 
gas  to  the  owner  or  occupant  of  an}'  building  or  premises,  which  may 
be  required  for  lighting  it  or  them,  upon  a  written  application  therefor 
to  be  signed  b}'  him.  It  also  provides,  that  if  for  the  space  of  ten  days 
after  such  application,  and  the  deposit  of  a  reasonable  sum,  as  in 
the  act  provided  (if  required),  the  corapan}'  shall  refuse  or  neglect  to 
supply  gas,  the}'  shall  pa}'  to  the  applicant  the  sum  of  ten  dollars  and 
five  dollars  for  every  day  thereafter  during  which  such  neglect  or  re- 
fusal shall  continue. 

It  will  be  observed  that  there  is  no  qualification  on  the  obligation 


FERGUSON   V.   METROPOLITAN   GAS   LIGHT  CO.  141 

imposed  by  the  statute.  The  gas  must  be  furnished  or  a  penalty  is 
incurred,  which  continues  from  day  to  day,  as  long  as  the  refusal  or 
neglect  to  supply  it  is  continued.  It  will  also  be  observed  that  the 
section  referred  to  does  not  either  directly  or  indirectly  require  the 
company  to  furnish  a  meter,  either  to  the  owner  or  occupant,  for 
the  whole  or  any  part  of  the  premises,  and  the  act  is  equally  silent  as 
to  the  mode  bj-  which  the  gas  shall  be  conveyed  through  the  houses. 

The  plaintiff  seeks  the  enforcement  of  a  penalty,  and  whether  the 
statute  be  regarded  as  penal  or  remedial,  and  one  either  to  be  strictly 
or  liberally  construed,  his  claim  is  not  within  its  purview.  Assuming 
that  he  is  the  occupant  of  premises  within  the  meaning  of  the  statute, 
which  may  well  be  questioned,  and  that  he  had  the  right  to  apply  for 
gas,  the  answer  to  his  demand  is,  that  gas  was  supplied  through  the 
pipes  provided  by  his  landlord,  which  he  could  use  if  he  chose  to  do  so, 
and  the  response  disposes  of  his  claim.  The  owner  of  the  building  had 
exhausted  the  power  to  compel  the  defendants  to  furnish  gas,  under 
section  six  of  the  act  referred  to.  They  had  granted  his  application 
for  it,  although  they  had  declined  to  furnish  separate  meters,  a  neglect 
or  refusal  of  which  to  him  he  alone  could  take  advantage  of.  The  gas 
having  been  thus  furnished,  no  penalty  was  incurred  by  them,  unless 
the  omission  to  supply  a  meter  to  the  plaintiff  is  fairly  within  the  appli- 
cation for  gas  and  included  in  it. 

This  cannot  be.  The  meter  is  employed  for  the  benefit  not  of  the 
consumer  but  the  company,  and  cannot  be  used  without  tests  which  the 
former  may  insist  shall  be  applied  (§  5).  If  the  compan}'  prefer,  they 
may  supply  the  gas  without  it,  for  aught  that  appears  in  this  case. 
The  statute  does  not  require  them  to  furnish  it,  and  that  in  itself  may 
be  sufficient  to  dispose  of  this  case.  If  the  statute  be  strictly  con- 
strued, the  defendants  are  not  liable,  because  they  have  furnished  gas 
to  the  building  which  includes  the  premises  occupied  by  the  plaintiff, 
and  which  only  they  were  bound  to  furnish,  and  if  it  be  liberally  en- 
forced, then  the  defendants  should  not  be  obliged  to  provide  an  article 
which  is  not  required  by  the  letter  of  the  law,  nor  necessary  to  the 
plaintiflE"  for  the  enjoyment  of  the  light  which  he  desires,  nor  should 
such  a  construction  create  a  duty  which  under  its  provisions  is  not 
declared. 

It  must  be  said  in  addition,  that  if  it  were  otherwise  considered, 
that  the  defendants  should  not  be  prohibited  from  adopting  reasonable 
rules  with  reference  to  the  introduction  of  gas,  protective  of  their  own 
interests.  * 

They  proved  on  the  trial,  that  it  was  not  customary  to  put  in  sepa- 
rate meters  such  as  demanded  by  the  plaintiff,  without  separate  service 
pipes,  and  that  they  were  necessary  to  prevent  "  tapping,"  which  would 
result  in  a  fraud  upon  their  rights.  The  legislature  has  by  various 
provisions  in  the  act  of  1859  sought  to  guard  them  against  fraud  and 
theft,  and  has  taken  the  lead  in  anticipating  violations  of  fair  dealing, 
against  which  corporations  as  well  as  natural  persons  are  guaranteed 


142  LAWRENCE    V.   PULLMAN    PALACE   CAR   CO. 

under  our  laws,  the  right  to  protect  themselves,  even  in  the  discharge 
of  duties  imposed  upon  them. 

For  these  reasons  the  judgment  should  be  reversed. 


LAWRENCE  v.   PULLMAN   PALACE  CAR  CO. 

Supreme  Court  of  Massachusetts,  1887. 

[U4  Mass.  i.J] 

Devens,  J.  The  gist  of  the  plaintiff's  claim  is  that  he  was  wrong- 
full}'  refused  accommodation  in  the  sleeping  car  of  the  defendant,  in 
coming  from  Baltimore  to  New  York,  by  tlie  defendant's  servants ; 
and  that,  on  declining  to  leave  the  car,  he  was  ejected  therefrom.  His 
argument  assumes  that  it  was  for  the  defendant  to  determine  under 
what  circumstances  a  passenger  should  be  allowed  to  purchase  a  berth, 
and,  incidentall}',  the  other  accommodations  afforded  by  the  sleeping 
ear.  An  examination  of  the  contract  with  the  Pennsylvania  Railroad 
Compan}',  by  virtue  of  which  the  cars  owned  bj-  the  defendant  were 
conveyed  over  its  railroad,  shows  that,  while  these  cars  were  to  be  fur- 
nished b}-  the  defendant  corporation,  the}-  were  so  furnished  to  be  used 
b}-  the  railroad  compan}-  "  for  the  transportation  of  passengers  ;  "  that 
its  employees  were  to  be  governed  by  the  rules  and  regulations  of  the 
railroad  company,  such  as  it  might  adopt,  from  time  to  time,  for  the 
government  of  its  own  employees.  While,  therefore,  the  defendant 
company  was  to  collect  the  fares  for  the  accommodations  furnished  by 
its  cars,  keep  them  in  proper  order,  and  attend  upon  the  passengers,  it 
was  for  the  railroad  company  to  determine  who  should  be  entitled  to 
enjoy  the  accommodations  of  these  cars,  and  b}-  what  regulation  this  use 
of  the  cars  should  be  governed.  The  defendant  compan}*  could  not 
certainly  furnish  a  berth  in  its  cars  until  the  person  requesting  it  had 
become  entitled  to  transportation  by  the  railroad  company  as  a  passen- 
ger, and  he  must  also  be  entitled  to  the  transportation  for  such  routes, 
distances,  or  under  such  circumstances,  as  the  railroad  company  should 
determine  to  be  those  under  which  the  defendant  company  would  be 
authorized  to  furnish  him  with  its  accommodations.  The  defendant 
company  could  only  contract  with  a  passenger  when  lie  was  of  such  a 
class  that  the  railroad  compan}-  permitted  the  contract  to  be  made. 

The  railroad  company  had  classified  its  trains,  fixing  the  terms  upon 
which  persons  should  become  entitled  to  transportation  in  the  sleeping 
cars,  and  the  cars  in  which  such  transportation  would  be  afforded.  It 
was  its  regulation  that,  between  Baltimore  and  New  York,  this  accom- 
modation should  only  be  furnished  to  those  holding  a  ticket  over  the 
whole  route.     It  does  not  appear  that  this  was  an  unreasonable  rule, 

*  Thia  case  is  abridged.  —  Ed. 


LAWRENCE   V.   PULLMAN   PALACE   CAR   CO.  143 

but,  whether  it  was  so  or  not,  it  was  the  regulation  of  the  railroad  corn- 
pan}',  and  not  of  the  defendant.  The  evidence  was,  "  that  the  ordinarj' 
train  conductors  of  the  Pennsylvania  Railroad  Compan}'  have  full  and 
entire  authority  over  the  porters  and  conductors  of  the  Pullman  cars,  in 
regard  to  the  matter  of  determining  who  shall  ride  in  the  cars,  and  under 
what  circumstances,  and  in  regard  to  ever}'  other  thing,  except"  the 
details  of  care,  &c.  The  defendant's  servant,  the  plaintiff  having  en- 
tered the  sleeping  car,  informed  him  that  his  "  split  tickets,"  as  the}' 
are  termed,  were  not  such  as  would  entitle  him  to  purchase  a  berth, 
and  that  he  could  sell  only  to  those  holding  "through  passage  tickets, 
intact,  to  the  point  to  which  sleeping  accommodations  were  desired." 
The  plaintiff  was  in  no  way  disturbed  until  the  train  conductor  (who 
was  not  the  defendant's  servant)  came  into  the  car,  informed  the  plain- 
tiff that  his  tickets  were  not  such  as  to  entitle  him  to  purchase  the 
sleeping-car  ticket,  and  several  times  urged  the  plaintiff  to  leave  the 
sleeping  car,  which  the  plaintiff  refused  to  do.  Whether  accommoda- 
tion was  rightly  refused  to  the  plaintiff  or  not  in  the  sleeping  car,  the 
refusal  was  the  act  of  the  railroad  company's  servant,  and  not  of  the 
defendant's,  whose  duty  it  was  4o  be  guided  by  the  train  conductor. 

The  ejection  of  the  plaintiff  was  also  the  act  of  the  railroad  company, 
and  not  of  the  defendant.  It  is  the  contention  of  the  pljlintiff,  that, 
even  if  he  might  be  ejected  from  the  car,  it  was  done  in  an  improper 
manner.  The  plaintiff  testified  that  he  was  waiting  for  a  "show  of 
force,"  after  his  repeated  refusals  to  leave  the  car.  This  exhibition  of 
force  was  made  by  the  train  conductor,  who  put  his  hand  upon  him, 
when  the  plaintiff  rose  and  yielded  thereto.  The  defendant's  conductor 
took  hold  of  the  plaintiff's  arm  when  he  rose,  and  aided  the  plaintiflf  in 
crossing  the  platform  of  the  cars,  but  the  evidence  does  not  show  that 
he  used  or  exercised  any  force  whatever.  Even  if  he  had  used  force 
upon  the  plaintiff,  he  was  not  doing  the  business  of  the  defendant  com- 
pany ;  he  was  assisting  the  train  conductor  in  the  duty  he  was  perform- 
ing as  servant  of  the  railroad  company.  To  conduct  him  across  from 
one  car  to  another  in  the  manner  described  by  the  plaintiff  himself,  after 
he  had  repeatedly  refused  to  leave  the  car,  affords  no  evidence  of  any 
removal  in  an  improper  manner.  The  act  of  the  defendant's  servant 
was  in  every  way  calculated  to  assist  the  plaintiff  in  his  transit  from 
one  car  to  another. 

Nor  is  the  fact  important  that  the  car  into  which  the  plaintiff  was 
passed  subsequently  became  cold,  even  if  it  were  possiWe  to  hold  the 
defendant  responsible  for  the  act  of  its  servant.  So  far  as  appears  by 
the  evidence,  there  is  no  reason  to  believe  that,  when  the  plaintiff  en- 
tered the  car,  it  was  not  in  fit  condition  to  receive  passengers ;  and,  by 
the  contract,  the  management  of  it  and  the  duty  of  furnishing  fuel  were 
entirely  with  the  railroad  company,  and  not  with  the  defendant. 

Judgment  on  the  verdict.^ 

1  Lemon  v.  Palace  Car  Co.,  52  Fed.  262 ;  Nevin  v.  Palace  Car  Co.,  106  111.  226 ; 
Williams  v.  Palace  Car  Co.,  40  La.  Ann.  417.  —  Ed. 


144  WESTEUN   UNION   TELEGRAPH   CO.    V.   DOZIER. 


WESTERN  UNION  TELEGRAPH  CO.  v.  DOZIER. 
Supreme  Court  of  Mississippi,  1889. 

[67  Miss.  288.] 

Campbell,  J.,  delivered  the  opinion  of  the  court. 

The  verdict  is  contrary  to  the  law  and  evidence,  and  should  have 
been  set  aside.  There  is  no  warrant  in  the  evidence,  in  any  view  of 
the  law,  for  a  recovery  of  any  actual  damage,  for  none  is  shown,  it  not 
appearing  that  Dr.  Dozier  sustained  any  by  reason  of  the  non-receipt 
of  a  message  requesting  his  services.  The  truth  appears  to  be  that  no 
message  was  sent  to  Dr.  Dozier,  but  that,  an  ineffectual  effort  having 
been  made  to  get  Dr.  "Walker  at  Nicholson,  and  Dr.  Watkins  at  Ilat- 
tiesburg,  the  operator  at  Poplarville  inquired  of  the  operator  at  Hat- 
tiesburg  if  Dr.  Dozier  was  in  the  town  and  was  informed  in  reply  that 
he  had  removed  to  Gulf-Port,  and  this  being  supposed  to  be  true,  no 
message  was  sent  to  Dr.  Dozier.  It  is  certain  that  no  message  to  him 
was  charged  for  or  paid  for,  and  therefore  nothing  was  received  by  the 
company  on  this  account.  It  appears  that  the  operator,  Mr.  Atkins, 
was  in  full  sj'mpathj'  with  those  trying  to  procure  a  physician,  and  at 
his  own  instance,  and  free  of  cost  to  them,  wired  to  Ellisville  for  the 
purpose  of  getting  a  ph3sician  known  to  him,  who  lived  there,  and  this 
suggests  the  improbability  that  he  should  have  failed  to  transmit  any 
message  delivered  to  him  to  be  sent  to  Dr.  Dozier. 

The  only  messages  actually  written  for  transmission  were  to  Dr. 
Walker  at  Nicholson,  and  to  Dr.  Watkins  at  Hattiesburg  and  they 
were  transmitted.  If  it  be  true  that  Stewart  and  Flanagan  or  either 
told  the  operator  to  wire  Dr.  Dozier,  the  question  is,  whether  that  was 
the  delivery  of  a  message,  within  the  meaning  of  the  law,  for  the  non- 
transmission  and  delivery  of  which  liability  would  be  incurred  by  the 
company.  In  the  absence  of  satisfactory'  evidence  of  a  known  course 
of  business  b}'  the  telegraph  company  to  receive  verbal  messages  orally 
delivered  to  operators  for  transmission,  we  are  not  willing  to  sanction 
the  proposition  that  failure  to  transmit  such  a  message  is  a  ground  for 
recovery  against  the  company',  either  bj'  statute  or  common  law.  It  is 
common  knowledge  that  messages  are  required  to  be  written,  and  upon 
the  blanks  of  the  company,  and  it  would  be  hazardous  to  pursue  any 
other  course.  The  very  expression  as  to  a  message  delivered  to  be 
Bent,  carries  with  it  the  idea  of  a  written  or  printed  message,  and  it 
would  seem,  that  for  one  to  talk  to  the  operator  as  to  the  message  he 
desired  to  send  could  not,  in  view  of  the  course  of  business  of  tele- 
graph companies,  impose  any  liability  on  such  compan}-. 

Jieversed  and  remanded. 


FRAZIER  &  COOPER  V.  KANSAS  CITY,  AC.  RAILWAY  COMPANY.      145 

FRAZIER   &   COOPER  v.  KANSAS   CITY,   ST.  JOSEPH   & 
COUNCIL  BLUFFS  RAILWAY   COMPANY. 

Supreme  Court  op  Iowa,  1878. 

[48  Iowa,  571.] 

Day,  J.  (after  reciting  the  special  findings  of  the  jury).  From 
these  special  findings  it  appears  that  the  plaintiffs  came  to  Watson 
on  the  same  train  on  which  they  expected  to  ship  their  hogs.  The 
hogs  to  be  shipped  were  not  in  the  yards  or  on  the  depot  grounds 
of  the  defendant  when  the  train  arrived  at  Watson,  but  were  in  a 
private  yard  in  no  way  controlled  or  used  by  defendant.  They 
had  not  been  given  into  the  control  of  any  authorized  agent  of  de- 
fendant Defendant  had  not  been  notified  to  what  particular  station 
the  hogs  were  to  be  shipped.  Cars  were  placed  at  the  yards  of  defend- 
ant, the  night  previous,  in  a  suitable  condition  to  be  loaded,  and  they 
could  have  been  loaded  without  the  aid  of  a  locomotive.  Under  such 
circumstances  the  plaintiffs  had  no  right  to  demand  or  expect  that  the 
defendant's  train  should  delay  at  the  station  until  the  hogs  should  be 
driven  into  the  defendant's  stock  yards,  loaded,  way-bills  made  out, 
contract  of  shipment  signed,  and  the  cars  placed  in  the  train.  If  such 
delay  could  be  demanded  at  one  station,  it  could  be  demanded  at  every 
station  on  defendant's  road.  Both  humanity  and  interest  require  that 
stock  trains  shall  go  forward  with  all  reasonable  dispatch.  The  plain- 
tifl's  should  have  left  some  one  at  Watson  in  charge  of  their  hogs,  and 
had  them  loaded  and  ready  for  shipment  when  the  train  arrived.  Each 
train  must  be  moved  with  reference  to  all  the  other  trains  on  the  road. 
A  delay  of  a  few  minutes  at  one  station  might  occasion  a  correspond- 
ing delay  of  ever}'  train  on  the  line  of  road,  and  even  result  in  acci- 
dents, destructive  of  property  and  life.  No  person  desiring  to  become 
a  passenger  upon  a  train  could  rightfully'  demand  a  delay  of  one  minute 
to  enable  him  to  reach  the  train  and  get  on  board.  tUpon  what  prin- 
ciple, then,  can  these  plaintiffs  demand  damages  because  the  defend- 
ant's train  did  not  wait  until  they  could  drive  their  hogs  into  defend- 
ant's 3'ard,  load  four  cars,  count  them,  have  way-bill  made  out,  shipping 
contract  signed,  and  the  cars  placed  in  the  train?  But  plaintiffs  say 
the  yards  of  defendant  were  not  in  suitable  condition,  and  hence  they 
were  not  required  to  have  their  hogs  in  defendant's  3'ards.  The 
special  findings  show  the  yards  of  defendant  were  not  in  suitable  con- 
dition for  keeping  plaintiffs'  stock,  not  being  supplied  with  water. 
The  special  findings  further  show  that  the  yards  of  defendant  were  in 
a  suitable  condition  from  which  to  load  hogs.  There  is  nothing  shown 
to  excuse  plaintiffs  from  driving  their  hogs  to  defendant's  yards,  and 
having  them  loaded  in  time  for  the  train. 

It  is  further  said  that  the  agents  of  defendant  a  few  days  previously 
told  Cooper  he  need  not  load  two  cars  he  then  had  there  until  after  the 
train  arrived.     This  particular  transaction  would  not  estop  defendant 

10 


146         KOBINSON  V.   BALTIMORE   A  OHIO  RAILROAD   COMPANY. 

from  insisting  upon  a  compliance  with  the  usual  custom  as  to  future 
shipments  of  a  greater  number  of  car  loads.  It  is  further  said  that  the 
train  stopped  at  the  next  station,  Phelps,  and  loaded  several  cars  of 
hogs,  some  of  which  were  brought  in  in  wagons  and  weighed  after  the 
train  arrived.  The  special  findings  show  that  there  was  no  dela}'  at 
Phelps  because  the  hogs  were  not  in  the  yard  of  the  company,  and  that 
the  cars  at  Phelps  were  loaded  when  the  train  arrived,  so  far  as  could 
be  done  without  the  use  of  a  locomotive.  The  very  fact  that  the  train 
had  to  stop  and  use  its  locomotive  to  load  at  Phelps  is  a  reason  wh}-  it 
ought  not  to  be  delaj'ed  at  Watson,  where  the  loading  could  be  done 
without  the  use  of  a  locomotive.  It  is  said,  however,  that  one  car  was 
loaded,  and  that  plaintiffs  should  have  damages  because  it  was  not 
taken  in  the  train.  But  the  hogs  in  this  car  were  not  counted,  and  no 
way-bill  was  made  out,  nor  does  it  appear  that  plaintiffs  desired  or 
were  williug  that  this  car  should  go  forward  alone. 

Affirmed. 


ROBINSON  V.  BALTIMORE   &   OHIO  RAILROAD  COMPANY. 
Circuit  Cocrt  of  Appeals  of  the  United  States,  1904. 

[129  Fed.  754.] 

Morris,  District  Judge.  This  is  an  appeal  from  a  decree  of  the  Cir- 
cuit Court  for  the  Northern  District  of  West  Virginia,  dated  April  24, 
1903,  perpetuating  an  injunction  by  which  the  appellants  were  inhibited 
from  attempting  to  ship  coal  against  the  consent  of  the  railroad  company 
in  the  city  of  Fairmont,  in  Marion  count}-,  W.  Va.,  at  a  point  known 
as  "  Walker's  Siding,"  or  at  any  depot  of  the  railroad  company  except 
the  depot  or  point  provided  by  the  railroad  company  for  the  reception 
and  shipment  oficoal.  The  bill  was  filed  November  20,  1902,  by  the 
appellee,  the  Baltimore  and  Ohio  Railroad  Company,  a  Maryland  cor- 
poration, complainant,  against  the  appellants,  citizens  of  West  Virginia, 
defendants,  alleging  that  the  railroad  company  maintained  at  Fairmont, 
in  Marion  count},  W.  Va.,  a  station  at  which  it  received,  stored,  and 
delivered  goods  and  merchandise,  except  coal,  and  also  had  there  cer- 
tain side  tracks,  known  as  "  Walker's  Siding,"  where  it  placed  cars  to 
receive  and  deliver  all  kinds  of  goods  and  merchandise,  except  coal, 
and  owned  and  maintained  there  a  roadway  about  60  feet  wide,  over 
which  shippers  and  receivers  of  goods,  except  coal,  were  allowed  to 
drive  teams  and  wagons  in  order  to  deliver  and  receive  goods  to  and 
from  the  cars  on  said  siding,  but  that  the  railroad  company  had  for- 
bidden, and  had  given  public  notice  that  it  forbade,  any  one  to  receive 
or  ship  coal  from  or  by  the  cars  at  said  Walker's  Siding,  and  had  des- 
ignated another  siding  in  said  cit}'  of  Fairmont,  called  the  "  Belt  Line," 
as  the  place  where  it  would  receive  and  ship  coal,  and  had  so  repeatedly 


EOBINSON   V.  BALTIMORE   &   OHIO  RAILROAD   COMPANY.        147 

notified  the  appellants.  The  bill  further  alleges  that  the  appellants 
were  not  owners  or  operators  of  coal  mines,  and  not  regular  shippers 
of  coal,  but  had  recently  engaged  in  the  business  of  hauling  coal  in 
wagons  to  Walker's  Siding  in  order  to  put  it  on  the  cars  of  the  railroad 
company  for  shipment  to  various  points,  that  the  appellants  had  been 
repeatedly  warned  not  to  do  so,  but  they  had  forcibly  persisted  in  haul- 
ing large  quantities  of  coal  to  Walker's  Siding,  and  depositing  the  same 
in  large  quantities  on  said  railroad,  and  in  forcibly  taking  possession  of, 
and  putting  the  coal  upon,  the  cars  placed  there  for  other  goods  and 
merchandise,  and  had  forcibly  obstructed  and  were  continuing  to  ob- 
struct shippers  and  receivers  of  other  goods  from  using  the  siding,  and 
said  bther  shippers  were  threatening  to  bring  suits  for  damage  against 
the  plaintiff  railroad  company ;  that  the  appellants  had  hauled  and 
dumped  large  quantities  of  coal  at  its  freight  station,  and  had  block- 
aded and  stopped  up  one  door  of  the  station,  and  had  blockaded  the 
roadway  by  congregating  and  keeping  standing  there  horses  and  wag- 
ons, which  they  refused  to  remove,  and  which  prevented  the  railroad 
company  from  either  receiving  or  delivering  other  goods  from  its  said 
freight  station  and  Walker's  Siding,  to  the  irreparable  injury  and  dam- 
age of  the  railroad  company ;  that  the  said  appellants  for  some  time 
prior  had  been  loading  and  shipping  their  coal  from  the  designated 
point  on  the  Belt  Line,  and  the  railroad  companj'^  had  assigned  a  cer- 
tain per  cent,  of  its  cars  for  the  use  of  the  said  appellants  for  shipping 
their  coal,  and  had  notified  the  appellants  that  they  were  subject  to 
their  use.  The  prayer  of  the  bill  was  for  an  injunction  restraining  the 
appellants  from  obstructing  the  station,  siding,  roadway,  and  ap- 
proaches thereto  in  the  manner  and  by  the  means  charged  in  the  bill 
of  complaint. 

The  answers  of  the  appellants  denied  that  the  freight  station  and 
siding  were  maintained  by  the  railroad  company  for  other  goods  and 
merchandise,  except  coal,  and  averred  that  the  station,  and  especially 
the  side  tracks  and  switches  called  "  Walker's  Siding,"  had  been  used 
and  were  maintained  by  the  railroad  company  for  the  purpose  of  receiv- 
ing and  shipping  coal  in  car-load  lots,  and  denied  that  the  Belt  Line 
was  a  proper  place  to  be  designated  by  the  railroad  for  the  shipment 
of  coal  by  the  defendants,  because  it  was  over  a  mile  farther  in  distance 
from  defendants'  mines,  and  the  increased  cost  of  the  haul  made  the 
shipment  of  coal  by  the  defendant  at  that  point  unprofitable.  The  alle- 
gations in  the  bill  of  complaint  that  the  appellants  had  defiantly  refused 
to  compl}'  with  notice  from  the  railroad  that  coal  would  not  be  received 
for  shipment  at  Walker's  Siding  were  not  reall}'  controverted  by  the 
answers  ;  and  the  depositions  fully  established  that  the  defendants  had 
resisted  the  order  with  force,  and  that  great  disorder  had  occurred,  and 
an  intolerable  confusion  and  disturbance  of  the  regular  business  of  the 
station  had. resulted  from  the  intentional  blocking  and  obstructing  of 
traffic  by  the  appellants  in  order  to  force  a  compliance  with  their  claims. 
The  appellants'  piincipal  justification  was  that  they  had  before  the  no- 


148  ROBINSON   V.   BALTIMORE   A   OHIO   RAILROAD   COMPANY. 

tice  been  in  the  habit,  from  time  to  time  of  shipping  small  quantities  of 
coal  at  Walker's  Siding.  The  reply  to  this  b}^  the  railroad  corapan}- 
was  that  on  account  of  the  scarcity  of  other  coal  in  the  winter  of  1902, 
and  the  rise  in  price,  the  quantity-  shipped  at  Walker's  Siding  became 
so  great  that  it  interfered  with  other  merchandise,  and  the  railroad 
company  was  compelled,  in  the  reasonable  regulation  of  its  business,  to 
provide  another  place  for  shipping  coal  from  Fairmont. 

Quite  recently  a  case  in  all  points  similar  to  the  case  in  hand  was 
heard  on  appeal  in  the  Eighth  Circuit  (Harp  v.  Choctaw,  O.  &  G.  R. 
R.  Co.,  125  Fed.  445) ;  and,  in  a  careful  opinion  by  Circuit  Judge 
Thayer,  it  was  held  that  a  railroad  company  had  the  right  to  make 
reasonable  regulations,  applicable  alike  to  all  shippers,  as  to  the  man- 
ner in  which  such  a  commodity  as  coal  would  be  received  for  trans- 
portation, and  could  not  be  held  answerable  because  it  refused  to 
receive  coal  hauled  by  wagons  to  the  side  tracks  of  a  station,  and 
that  the  power  to  make  reasonable  regulations  as  to  the  manner  and 
place  where  the  railroad  would  receive  coal  for  shipment  implied  the 
power  to  change  and  modify  such  regulations  from  time  to  time  upon 
reasonable  notice  to  the  public.  We  do  not  think  it  necessary  to  at- 
tempt to  add  anything  to  the  reasoning  and  citation  of  authorities  by 
which  the  ruling  in  that  case  is  supported.  The  case  of  the  appellants 
depends  entirel}'  upon  their  alleged  right  to  compel  the  railroad  company 
to  receive  the  appellants'  coal  at  Walker's  Siding  because  other  mer- 
chandise was  received  there.  This  right  cannot  be  sustained.  It  is 
not  shown  that  the  Belt  Line  designated  b}-  the  railroad  company  as 
the  place  where,  on  account  of  the  large  temporarj-  increase  in  the 
shipment  of  coal,  it  would  receive  it,  was  an  unreasonable  place  in  an}' 
way.  It  was  a  more  distant  place  for  the  appellants,  but  it  may  have 
been  nearer  to  others.  It  is  not  shown  that,  under  all  the  circum- 
stances, it  was  not  a  reasonable  provision  for  the  transportation  of  coal 
at  Fairmont. 

The  case  stated  in  the  bill  of  complaint,  and  established  b}-  the 
depositions,  was  a  most  proper  one  for  relief  by  injunction.  The 
depositions  showed  that  the  persistent  efforts  of  the  appellants  to 
block  up  the  approaches  to  Walker's  Siding  with  teams,  which  were 
kept  there  for  the  purpose  of  obstructing  traffic,  and  the  taking  pos- 
session of  cars  intended  for  shippers  of  other  merchandise,  and  the 
dumping  of  coal  at  the  siding  and  station,  had  resulted  during  two 
days  in  suspending  all  freight  business  at  the  station,  and  threatened 
to  continue  indefinitely  until  the  appellants  had  compelled  submis- 
sion to  their  demands.  This  amounted  to  a  public  nuisance,  with  im- 
mediate danger  of  irreparable  mischief  before  the  tardiness  of  the  law 
could  suppress  it.  In  such  cases  the  jurisdiction  of  courts  of  equit}'  to 
give  more  adequate  and  complete  relief  by  injunction  has  been  fully 


THE   D.   R.   MARTIN.  149 

sustained.     In  re  Debs,  158  U.  S.  564,  587,  588,  596,  15  Sup.  Ct.  900, 
59  L.  Ed.  1092. 

We  are  of  opinion  that  the  decree  for  a  permanent  injunction  was,  in 
substance,  right,  and  should  be  affirmed. 


THE  D.   R.   MARTIN. 
Circuit  Couet  op  the  United  States,  So.  New  York,  1873. 

[II  Blatch.  233.] 

Hunt,  J.  On  the  trial  before  the  District  Judge,  the  libellant,  David 
F.  Barney,  recovered  the  sum  of  $1,000,  as  his  damages  for  ejecting 
him  from  the  steamboat  D.  R.  Martin,  on  the  morning  of  October  23, 
1871.  On  an  application  subsequentl}'  made  to  him,  the  District  Judge 
reduced  the  recover}'  to  the  sum  of  $500.  A  careful  perusal  of  all  the 
testimony  satisfies  me  that  the  libellant  was  pursuing  his  business  as 
an  express  agent  on  board  of  the  boat,  that  he  persisted  in  it  against  the 
remonstrance  of  the  claimant,  and  that  it  was  to  prevent  the  transac- 
tion of  that  business  b}'  him  on  board  of  the  boat,  that  he  was  ejected 
therefrom  by  the  claimant.  The  steamboat  company  owning  this  vessel 
were  common  carriers  between  Huntington  and  New  York.  They  were 
bound  to  transport  every  passenger  presenting  himself  for  transporta- 
tion, who  was  in  a  fit  condition  to  travel  by  such  conveyance.  They 
were  bound,  also,  to  carry  all  freight  presented  to  them  in  a  reasonable 
time  before  their  hours  of  starting.  The  capacity  of  their  accommoda- 
tion was  the  only  limit  to  their  obligation.  A  public  conveyance  of 
this  character  is  not,  however,  intended  as  a  place  for  the  transaction 
of  the  business  of  the  passengers.  The  suitable  carriage  of  persons  or 
property  is  the  only  duty  of  the  common  carrier.  A  steamboat  com- 
pany, or  a  railroad  company,  is  not  bound  to  furnish  travelling  con- 
veniences for  those  who  wish  to  engage,  on  their  vehicles,  in  the  businesa 


150  THE  D.   R.   MARTIN. 

of  selling  hooTcs,  papers,  or  articles  of  food,  or  in  the  business  of  receiv- 
ing and  (listributing  parcels  or  baggage,  nor  to  permit  the  transaction 
of  this  business  in  tlieir  vehicles,  when  it  interferes  with  their  own 
interests.  If  a  profit  may  arise  from  such  business,  the  benefit  of  it 
belongs  to  the  company,  and  they  are  entitled  to  the  exclusive  use  of 
their  vehicles  for  such  purposes.  This  seems  to  be  clear  both  upon 
principle  and  authorit}-.  (Storj-  on  Bailments,  §  591a/  Jencivs  v.  Cole- 
man, 2  Sumner,  221  ;  Burgess  v.  Clements,  4  Maule  &  Sel.,  30G  ;  Fell 
V.  Knight,  8  Mee.  &  W.,  269  ;  Commonwealth  v.  Power,  1  Am.  Railway 
Cases,  389.)  These  cases  show  that  the  principle  thus  laid  down  is 
true  as  a  general  rule.  The  case  of  The  N.  J.  Steam  Nav.  Co.  v. 
Merchants'  Bank  (6  How.  344)  shows  that  it  is  especially  applicable 
to  those  seeking  to  do  an  express  business  on  such  convej'ances.  It  is 
there  held,  in  substance,  that  the  carrier  is  liable  to  the  owner  for  all 
the  goods  shipped  on  a  public  conve3ance  by  an  express  company, 
without  regard  to  an}'  contract  to  the  contrary  between  the  carrier  and 
the  express  company.  Although  the  carrier  ma}-  have  no  custody  or 
control  of  the  goods,  he  is  liable  to  the  owner  in  case  of  loss,  if  he 
allows  them  to  be  brought  on  board.  It  is  the  simplest  justice  that  he 
should  be  permitted  to  protect  himself  by  preventing  their  being  brougiit 
on  board  b}-  those  having  them  in  charge.  This  rule  would  not  exclude 
the  transmission,  as  freight,  of  any  goods  or  property  which  the  owners 
or  agents  should  choose  to  place  under  the  care  and  control  of  the 
carrier. 

That  persons  other  than  the  libellants  carried  a  carpet  bag  without 
charge,  or  that  such  bag  occasionally'  contained  articles  forwarded  b}' 
a  neighbor  or  procured  for  a  friend,  does  not  affect  the  carrier's  right. 
The  cases  where  this  was  proved  to  have  been  done  were  rare  and 
exceptional,  and  do  not  appear  to  have  been  known  to  the  carrier,  nor 
does  it  appear  that  an}'  compensation  was  paid  to  the  agent  They 
were  neighborly  and  friendly  services,  such  as  people  in  the  country 
are  accustomed  to  render  for  each  other.  But,  if  the  service  and  the 
business  had  been  precisely  like  that  of  the  libellant  the  rule  would 
have  been  the  same.  The  rights  of  the  carrier  in  respect  to  A.  are  not 
gone  or  impaired,  for  the  reason  that  he  waives  his  rights  in  respect 
to  B.,  especially  if  A.  be  notified  that  the  rights  are  insisted  upon  as  to 
him.  If  Mr.  Prime  was  permitted  to  carry  a  bag  without  charge  on 
the  claimant's  boat,  or  to  do  a  limited  express  business  thereon,  this 
gave  the  libellant  no  right  to  do  such  business,  when  notified  by  the 
carrier  that  he  must  refrain  from  it.  A  carrier,  like  all  others,  may 
bestow  favor  where  he  chooses.  Rights,  not  favors,  are  the  subject  of 
demand  by  all  parties  indiscriminately.  The  incidental  benefit  arising 
from  the  transaction  of  such  business  as  may  be  done  on  board  of  a 
l>oat  or  on  a  car,  belongs  to  the  carrier,  and  he  can  allow  the  privilege 
to  one  and  exclude  from  it  another,  at  his  pleasure.  A  steamboat 
company  or  a  railroad  company,  may  well  allow  an  individual  to  open 
a  restaurant  or  a  bar  on  their  conveyance,  or  to  do  the  business  of  boot 


THE   D.   K.   MARTIN.  151 

blacking,  or  of  peddling  books  and  papers.  This  individual  is  under 
their  control,  subject  to  their  regulation,  and  the  business  interferes  in 
no  respect  with  the  orderly  management  of  the  vehicle.  But  if  every 
one  that  thmks  fit  can  enter  upon  the  performance  of  these  duties,  the 
control  of  the  vehicle  and  its  good  management  would  soon  be  at  an 
end.  The  cars  or  boats  are  those  of  the  carrier,  and,  I  think,  exclu- 
sively his,  for  this  purpose.  The  sale  or  leasing  of  these  rights  to  indi- 
viduals, and  the  exclusion  of  others  therefrom,  come  under  the  head  of 
reasonable  regulations,  which  the  courts  are  bound  to  enforce.  The 
right  of  transportation,  which  belongs  to  all  who  desire  it,  does  not 
carry  with  it  a  right  of  traffic  or  of  business. 

It  is  insisted  that  the  libellant  could  not  legally  be  ejected  from  the 
boat  for  any  offence,  or  violation  of  rules,  committed  on  a  former  occa- 
sion. It  isi  insisted,  also,  that,  having  purchased  a  ticket  from  the 
agent  of  the  company,  his  right  to  a  passage  was  perfect.  Neither  of 
these  propositions  is  correct.  In  Commonwealth  v.  Power,  (7  Met.  596,) 
the  passenger  had  actually  purchased  his  ticket,  and  the  Chief  Justice 
says :  "If  he.  Hall,  gave  no  notice  of  his  intention  to  enter  the  car  as 
a  passenger,  and  of  his  right  to  do  so,  and  if  Power  believed  that  his 
intention  was  to  violate  a  reasonable  subsisting  regulation,  then  he  and 
his  assistants  were  justified  in  forcibly  removing  him  from  the  depot." 
In  Pearson  v.  Duane,  (4  Wallace,  605,)  Mr.  Justice  Davis,  in  giving  the 
opinion  of  the  court,  held  the  expulsion  of  Duane  to  have  been  illegal, 
because  it  was  delayed  until  the  vessel  had  sailed.  "  But  this  refusal," 
he  says,  "should  have  preceded  the  sailing  of  the  ship.  After  the  ship 
had  got  to  sea,  it  was  too  late  to  take  exceptions  to  the  character  of  a 
passenger,  or  to  his  peculiar  position,  provided  he  violated  no  inflexible 
rule  of  the  boat  in  getting  on  board."  The  libellant,  in  this  case,  re- 
fused to  give  any  intimation  that  he  would  abandon  his  trade  on  board 
the  vessel.  The  steamboat  company,  it  is  evident,  were  quite  willing 
to  carry  him  and  his  baggage,  and  objected  onl}'  to  his  persistent  at- 
tempts to  continue  his  traffic  on  their  boat.  He  insisted  that  he  had 
the  right  to  pursue  it,  and  the  company  resorted  to  the  onlj'  means  in 
their  power  to  compel  its  abandonment,  to  wit,  his  removal  from  the 
boat.  This  was  done  with  no  unnecessary  force,  and  was  accompanied 
by  no  indignity.  In  my  opinion,  the  removal  was  Justified,  and  the 
decree  must  be  reversed.^ 

>  Aec.  Bamey  v.  Oyster  Bay  &  H.  S.  B.  Co.,  67  N.  Y.  301.— Ed. 


152  McDDFFEE   V.    PORTLAND   A   ROCHESTER   RAILROAD. 

McDUFFEE    v.   PORTLAND   AND    ROCHESTER    RAILROAD. 

SuPBEUE  Judicial  Court  of  New  Hampshire,  1873. 

[52  N.  H.  430.] 

Case,  by  Daniel  McDuffee  against  the  Portland  &  Rochester  Rail- 
road, for  not  furnishing  the  plaintiff  terms,  facilities,  and  accommoda- 
tions for  his  express  business  on  the  defendants'  road,  between  Rochester, 
N.  H.,  and  Portland,  Me.,  reasonably  equal  to  those  furnished  by  the 
defendants  to  the  Eastern  Express  Company. 

The  defendants  demurred  to  the  declaration.* 

Doe,  J.  I.  A  common  carrier  is  a  public  carrier.  He  engages  in  a 
public  employment,  takes  upon  himself  a  public  duty,  and  exercises  a 
sort  of  public  office.  Sandford  v.  R.  Co.,  24  Pa.  St.  378,  381 ;  N.  J. 
S.  N.  Co.  V.  Merchants'  Bank,  6  How.  344,  382  ;  Shelden  v.  Robinson, 
7  N.  H.  157,  163,  164;  Gray  v.  Jackson,  51  N.  H.  9,  10;  Ansell  v, 
Waterhouse,  2  Chitty,  1,  4;  Hollister  v.  Nowlen,  19  Wend.  234,  239. 
He  is  under  a  legal  obligation  :  others  have  a  corresponding  legal  right. 
His  duty  being  public,  the  correlative  right  is  public.  The  public  right 
is  a  common  right,  and  a  common  right  signifies  a  reasonablj'  equal 
right.  "  There  are  certain  cases  in  which,  if  individuals  dedicate  their 
personal  services,  or  the  temporary  use  of  their  propertj',  to  the  public, 
the  law  will  impose  certain  duties  upon  them,  and  regulate  their  pro- 
ceedings to  a  certain  extent.  Thus,  a  common  carrier  is  bound  by 
law,  if  he  have  conveniences  for  the  purpose,  to  carry  for  a  reasonable 
compensation."  Olcott  v.  Banfill,  4  N.  H.  537,  546.  "He  [the  com- 
mon carrier]  holds  a  sort  of  official  relation  to  the  public.  He  is 
bound  to  carr}'  at  reasonable  rates  such  commodities  as  are  in  his  line 
of  business,  for  all  persons  who  offer  them,  as  earl}'  as  his  means  will 
allow.  He  cannot  refuse  to  carry  a  proper  article,  tendered  to  him  at 
a  suitable  time  and  place,  on  the  oflTer  of  the  usual  reasonable  compen- 
sation. Story  on  Bailments,  sec.  508;  Riley  v.  Home,  5  Bing.  217, 
224  ;  Bennett  v.  Dutton,  10  N.'H.  486.  When  he  undertakes  the  busi- 
ness of  a  common  carrier,  he  assumes  this  relation  to  the  public,  and 
he  is  not  at  liberty  to  decline  the  duties  and  responsibilities  of  his 
place,  as  they  are  defined  and  fixed  by  law."  Moses  v.  B.  &  M.  R.  R., 
24  N.  H.  71,  88,  89.  On  this  ground  it  was  held,  in  that  case,  that 
a  common  carrier  could  not,  by  a  public  notice,  discharge  himself  from 
the  legal  responsibility  pertaining  to  his  office,  or  from  performing  his 
public  duty  in  the  way  and  on  the  terms  prescribed  by  law. 

"  The  very  definition  of  a  common  carrier  excludes  the  idea  of  the 
right  to  grant  monopolies,  or  to  give  special  and  unequal  preferences. 
It  implies  indifference  as  to  whom  they  may  serve,  and  an  equal  readi- 
ness to  serve  all  who  may  apply,  and  in  the  order  of  their  application." 
N.  E.  Express  Co.  v.  M.  C.  R.  R.  Co.,  57  Me.  188,  196.     A  common 

*  Ar^ments  of  coansel  are  omitted.  —  Ed. 


McDUFFEE   V.   PORTLAND   <k   ROCHESTER   RAILROAD.  153 

carrier  of  passengers  cannot  exercise  an  unreasonable  discrimination  in 
carrying  one  and  refusing  to  carrj'  another.  Bennett  v.  Button,  10  N.  H. 
481.  A  common  carrier  of  freight  cannot  exercise  an  unreasonable 
discrimination  in  carrying  for  one  and  refusing  to  carry  for  another. 
He  may  be  a  common  carrier  of  one  kind  of  property,  and  not  of  an- 
other ;  but,  as  to  goods  of  which  he  is  a  common  carrier,  he  cannot 
discriminate  unreasonably  against  any  individual  in  the  performance  of 
the  public  duty  which  he  assumed  when  he  engaged  in  the  occupation 
of  carrying  for  all.  His  service  would  not  be  public  if,  out  of  the  per- 
sons and  things  in  his  line  of  business,  he  could  arbitrarily  select  whom 
and  what  he  would  cany.  Such  a  power  of  arbitrary  selection  would 
destro}-  the  public  character  of  his  emplo3'ment,  and  the  rights  which 
the  public  acquired  when  he  volunteered  in  the  public  service  of  common- 
carrier  transportation.  With  such  a  power,  he  would  be  a  carrier,  — 
a  special,  private  carrier,  —  but  not  a  common,  public  one.  From  the 
public  service  —  which  he  entered  of  his  own  accord  —  he  may  retire, 
ceasing  to  be  a  common  carrier,  with  or  without  the  public  consent, 
according  to  the  law  applicable  to  his  case  ;  but,  as  long  as  he  remains 
in  the  service,  he  must  perform  the  duties  appertaining  to  it.  The 
remedies  for  neglect  or  violation  of  dutj-  in  the  civil  service  of  the 
State  are  not  the  same  as  in  the  militar}'  service  ;  but  the  public  rights 
of  having  the  duties  of  each  performed  are  much  the  same,  and,  in 
the  department  now  under  consideration,  ample  remedies  are  not  want- 
ing. The  right  to  the  transportation  service  of  a  common  carrier  is  a 
common  as  well  as  a  public  right,  belonging  to  every  individual  as  well 
as  to  the  State.  A  right  of  conveyance,  unreasonabh'  and  injuriously 
preferred  and  exclusive,  and  made  so  by  a  special  contract  of  the  com- 
mon carrier,  is  not  the  common,  public  right,  but  a  violation  of  it. 
And  when  an  individual  is  specially  injured  b}'  such  a  violation  of  the 
common  right  which  he  is  entitled  to  enjoy,  he  may  have  redress  in  an 
action  at  common  law.  The  common  carx'ier  has  no  cause  to  complain 
of  his  legal  responsibilit}-.  It  was  for  him  to  consider  as  well  the  duty 
as  the  profit  of  being  a  public  servant,  before  embarking  in  that  busi- 
ness. The  profit  could  not  be  considered  without  taking  the  duty  into 
account,  for  the  rightful  profit  is  the  balance  of  compensation  left  after 
paying  the  expenses  of  performing  the  duty.  And  he  knew  before- 
hand, or  ought  to  have  known,  that  if  no  profit  should  accrue,  the  per- 
formance of  the  duty  would  be  none  the  less  obligatory  until  he  should 
be  discharged  from  the  public  service.  Taylor  v.  Railway,  48  N.  H. 
304,  317.  The  chances  of  profit  and  loss  are  his  risks,  being  necessary 
incidents  of  his  adventure,  and  for  him  to  judge  of  before  devoting  his 
time,  labor,  care,  skill,  and  capital  to  the  service  of  the  country. 
Profitable  or  unprofitable,  his  condition  is  that  of  one  held  to  service, 
having  by  his  own  act,  of  his  own  free  will,  submitted  himself  to  that 
condition,  and  not  having  liberated  himself,  nor  been  released,  from  it. 

A  common  carrier  cannot  directly  exercise  unreasonable  discrimina- 
tion as  to  whom  and  what  he  will  carrj".     On  what  legal  ground  can 


154  McDUFFEE   V.   PORTLAND  4  ROCHESTER   RAILROAD. 

he  exercise  such  discrimination  indirect!}?  He  cannot,  without  good 
reason,  while  carrying  A,  unconditionally  refuse  to  carry  B.  On  what 
legal  ground  can  he,  without  good  reason,  while  providing  agreeable 
terms,  facilities,  and  accommodations  for  the  convejance  of  A  and  his 
goods,  provide  such  disagreeable  ones  for  B  that  he  is  practically'  com- 
pelled to  sta\'  at  home  with  his  goods,  deprived  of  his  share  of  the 
common  right  of  transportation?  What  legal  principle,  guaranteeing 
the  common  right  against  direct  attack,  sanctions  its  destruction  b}-  a 
circuitous  invasion?  As  no  one  can  infringe  the  common  right  of 
travel  and  commercial  intercourse  over  a  public  highwa\-,  on  land  or 
water,  b\'  making  the  way  absolutely  impassable,  or  rendering  its  pas- 
sage unreasonably  unpleasant,  unhealthy,  or  unprofitable,  so  a  com- 
mon carrier  cannot  infringe  the  common  right  of  common  carriage, 
either  b}'  unreasonably  refusing  to  carry  one  or  all,  for  one  or  for  all, 
or  b}'  imposing  unreasonably  unequal  terms,  facilities,  or  accommoda- 
tions, which  would  practically  amount  to  an  embargo  upon  the  travel 
or  traffic  of  some  disfavored  individual.  And,  as  all  common  carriers 
combined  cannot,  directl}'  or  indirectly,  destro}'  or  interrupt  the  com- 
mon right  b}'  stopping  their  branch  of  the  public  service  while  the}' 
remain  in  that  service,  so  neither  all  of  them  together  nor  one  alone 
can,  directly  or  indirect!}',  deprive  any  individual  of  his  lawful  enjoy- 
ment of  the  common  right.  Equality,  in  the  sense  of  freedom  from 
unreasonable  discrimination,  being  of  the  very  substance  of  the  com- 
mon right,  an  individual  is  deprived  of  his  lawful  enjoyment  of  the 
common  right  when  he  is  subjected  to  unreasonable  and  injurious  dis- 
crimination in  respect  to  terms,  facilities,  or  accommodations.  That  is 
not,  in  the  ordinary  legal  sense,  a  public  highway,  in  which  one  man  is 
unreasonably  privileged  to  use  a  convenient  path,  and  another  is  un- 
reasonably restricted  to  the  gutter ;  and  that  is  not  a  public  service  of 
common  carriage,  in  which  one  enjoys  an  unreasonable  preference  or 
advantage,  and  another  suffers  an  unreasonable  prejudice  or  disadvan- 
tage. A  denial  of  the  entire  right  of  service  by  a  refusal  to  carry, 
differs,  if  at  all,  in  degree  only,  and  the  amount  of  damage  done,  and 
not  in  the  essential  legal  character  of  the  act,  from  a  denial  of  the 
right  in  part  by  an  unreasonable  discriminatipn  in  terms,  facilities,  or 
accommodations.  Whether  the  denial  is  general  by  refusing  to  furnish 
any  transportation  whatever,  or  special  by  refusing  to  carry  one  person 
or  his  goods ;  whether  it  is  direct  by  expressly  refusing  to  carry,  or 
indirect  by  imposing  such  unreasonable  terms,  facilities,  or  accommo- 
dations as  render  carriage  undesirable ;  whether  unreasonableness  of 
terms,  facilities,  or  accommodations  operates  as  a  total  or  a  partial 
denial  of  the  right ;  and  whether  the  unreasonableness  is  in  the  intrin- 
sic, individual  nature  of  the  terms,  facilities,  or  accommodations,  or  in 
their  discriminating,  collective,  and  comparative  character,  —  the  right 
denied  is  one  and  the  same  common  right,  which  would  not  be  a  right 
if  it  could  be  rightfully  denied,  and  would  not  be  common,  in  the  legal 
sense,  if  it  could  be  legally  subjected  to  unreasonable  discrimination^ 


MCDUFFEE   V.   PORTLAND   &   ROCHESTER   RAILROAD.  155 

and  parcelled  out  among  men  in  unreasonabl}'  superior  and  inferioi 
grades  at  the  behest  of  the  servant  from  whom  the  service  is  due. 

The  commonness  of  the  right  necessarily  implies  an  equality  of  right, 
in  the  sense  of  freedom  from  unreasonable  discrimination  ;  and  any 
practical  invasion  of  the  common  right  by  an  unreasonable  discrimina- 
tion practised  by  a  carrier  held  to  the  common  service  is  insubordi- 
nation and  mutin}',  for  which  he  is  liable,  to  the  extent  of  the  damage 
inflicted,  in  an  action  of  case  at  common  law.  The  question  of  reason- 
ableness of  price  maj'  be  something  more  than  the  question  of  actual 
cost  and  value  of  service.  If  the  actual  value  of  certain  transportation 
of  one  hundred  barrels  of  flour,  affording  a  reasonable  profit  to  the 
carrier,  is  one  hundred  dollars  ;  if,  all  the  circumstances  that  ought  to 
be  considered  being  taken  into  account,  that  sum  is  the  price  which 
ought  to  be  charged  for  that  particular  service ;  and  if  the  carrier 
charges  everybod}^  that  price  for  that  service,  there  is  no  encroachment 
on  the  common  right.  But  if  for  that  service  the  carrier  charges  one 
flour  merchant  one  hundred  dollars,  and  another  Miy  dollars,  the  com- 
mon right  is  as  manifestly'  violated  as  if  the  latter  were  charged  one 
hundred  dollars,  and  the  former  two  hundred.  What  kind  of  a  com- 
mon right  of  carriage  would  that  be  which  the  carrier  could  so  admin- 
ister as  to  unreasonabl}',  capriciously',  and  despotically'  enrich  one  man 
and  ruin  another?  If  the  service  or  price  is  unreasonable  and  injuri- 
ous, the  unreasonableness  is  equally  actionable,  whether  it  is  in  in- 
equality or  in  some  other  particular.  A  service  or  price  that  would 
otherwise  be  reasonable  may  be  made  unreasonable  bj'  an  unreason- 
able discrimination,  because  such  a  discrimination  is  a  violation  of  the 
common  right.  There  might  be  cases  where  persons  complaining  of 
such  a  violation  would  have  no  cause  of  action,  because  the}'  would 
not  be  injured.  There  might  be  cases  where  the  discrimination  would 
be  injurious ;  in  such  cases  it  would  be  actionable.  There  might  be 
cases  where  the  remedy  b}'  civil  suit  for  damages  at  common  law 
would  be  practically  ineffectual  on  account  of  the  diflJcultj'  of  proving 
large  damages,  or  the  mcompetence  of  a  multiplicity  of  such  suits  to 
abate  a  continued  grievance,  or  for  other  reasons  ;  in  such  cases  there 
would  be  a  plain  and  adequate  remed}',  where  there  ought  to  be  one, 
by  the  re-enforcing  operation  of  an  injunction,  or  by  indictment,  infor- 
mation, or  other  common,  familiar,  and  appropriate  course  of  law. 

The  common  and  equal  right  is  to  reasonable  transportation  service 
for  a  reasonable  compensation.  Neither  the  service  nor  the  price  is 
necessarily  unreasonable  because  it  is  unequal,  in  a  certain  narrow, 
strict,  and  literal  sense ;  but  that  is  not  a  reasonable  service,  or  a 
reasonable  price,  which  is  unreasonablj^  unequal.  The  question  is  not 
merely  whether  the  service  or  price  is  absolutely  unequal,  in  the  nar- 
rowest sense,  but  also  whether  the  inequality  is  unreasonable  and 
injurious.  There  may  be  acts  of  charity  ;  there  may  be  different  prices 
for  different  kinds  or  amounts  of  service  ;  there  may  be  many  diflfer- 
ences  of  price  and  sei-vice,  entirely  consistent  with  the  general  prin* 


156  MCDUFFEE  V.   PORTLAND   &   ROCHESTER  RAILROAD. 

ciple  of  reasonable  equality  which  distinguishes  the  dut}^  of  a  common 
carrier  in  the  legal  sense  from  the  dut}-  of  a  carrier  who  is  not  a  com- 
mon one  in  that  sense.  A  certain  inequalitj'  of  terms,  facilities,  or 
accommodations  may  be  reasonable,  and  required  by  the  doctrine  of 
reasonableness,  and  therefore  not  an  infringement  of  the  common 
right.  It  may  be  the  dut}'  of  a  common  carrier  of  passengers  to  carry 
under  discriminating  restrictions,  or  to  refuse  to  carr}-  those  who,  by 
reason  of  their  physical  or  mental  condition,  would  injure,  endanger, 
disturb,  or  annoy  other  passengers ;  and  an  analogous  rule  may  be 
applicable  to  the  common  carriage  of  goods.  Health}*  passengers  in  a 
palatial  car  would  not  be  provided  with  reasonable  accommodations  if 
they  were  there  unreasonably  and  negligently  exposed  by  the  carrier 
to  the  society  of  small-pox  patients.  Sober,  quiet,  moral,  and  sensi- 
tive travellers  may  have  cause  to  complain  of  their  accommodations  if 
the}'  are  unreasonably  exposed  to  the  companionship  of  unrestrained, 
intoxicated,  noisy,  profane,  and  abusive  passengers,  who  may  enjoy 
the  discomfort  they  cast  upon  others.  In  one  sense,  both  classes,  car- 
ried together,  might  be  provided  with  equal  accommodations ;  in  another 
sense,  they  would  not.  The  feelings  not  corporal,  and  the  decencies  of 
progressive  civilization,  as  well  as  physical  life,  health,  and  comfort, 
are  entitled  to  reasonable  accommodations.  2  Greenl.  Ev.  sec.  222  a  ; 
Bennett  v.  Button,  10  N.  H.  481,  486.  Mental  and  moral  sensibilities, 
unreasonably  wounded,  may  be  an  actual  cause  of  suffering,  as  plain 
as  a  broken  limb ;  and  if  the  injury  is  caused  by  unreasonableness  of 
facilities  or  accommodations  (which  is  synonymous  with  unreasonable- 
ness of  service),  it  may  be  as  plain  a  legal  cause  oi  action  as  any 
bodily  hurt,  commercial  inconvenience,  or  pecuniary  loss.  To  allow 
one  passenger  to  be  made  uncomfortable  by  another  committing  an 
outrage,  without  physical  violence,  against  the  ordinary  proprieties  of 
life  and  the  common  sentiments  of  mankind,  may  be  as  clear  a  viola- 
tion of  the  common  right,  and  as  clear  an  actionable  neglect  of  a 
common  carrier's  duty,  as  to  permit  one  to  occupy  two  seats  while 
another  stands  in  the  aisle.  Although  reasonableness  of  service  or 
price  may  require  a  reasonable  discrimination,  it  does  not  tolerate  an 
unreasonable  one ;  and  the  law  does  not  require  a  court  or  jury  to 
waste  time  in  a  useless  investigation  of  the  question  whether  a  proved 
injurious  unreasonableness  of  service  or  price  was  in  its  intrinsic  or 
in  its  discriminating  quL.'vty.  The  main  question  is,  not  whether  the 
unreasonableness  was  In  this  or  in  that,  but  whether  there  was  un- 
reasonableness, and  whether  it  was  injurious  to  the  plaintiff. 

This  question  may  be  made  unnecessarily  difficult  by  an  indefinite- 
ness,  confusion,  and  obscurity  of  ideas  that  may  arise  when  the  public 
duty  of  a  common  carrier,  and  the  correlative  common  right  to  his 
reasonable  service  for  a  reasonable  price,  are  not  clearly  and  broadly 
distinguished  from  a  matter  of  private  charity.  If  A  receives,  as  a 
charity,  transportation  service  without  price,  or  for  less  than  a  reason- 
able price,  from  B,  who  is  a  common  carrier,  A  does  not  receive  it  as 


McDUFFEE   V.   POKTLAND   &   EOCHESTER   RAILROAD.  157 

his  enjoyment  of  the  common  right ;  B  does  not  give  it  as  a  perform-- 
ance  of  his  public  duty ;  C,  who  is  required  to  pay  a  reasonable  price 
for  a  reasonable  service,  is  not  injured ;  and  the  public,  supplied  with 
reasonable  facilities  and  accommodations  on  reasonable  terms,  cannot 
complain  that  B  is  violating  his  public  duty.  There  is,  in  such  a  case, 
no  discrimination,  reasonable  or  unreasonable,  in  that  reasonable  ser- 
vice for  a  reasonable  price  which  is  the  common  right.  A  person  who 
is  a  common  carrier  ma}'  devote  to  the  needy,  in  any  necessary  form 
of  relief,  all  the  reasonable  profits  of  his  business.  He  has  the  same 
right  that  any  one  else  has  to  give  money  or  goods  or  transportation 
to  the  poor.  But  it  is  neither  his  legal  duty  to  be  charitable  at  his 
own  expense,  nor  his  legal  right  to  be  charitable  at  the  expense  of 
those  whose  servant  he  is.  If  his  reasonable  compensation  for  certain 
carriage  is  one  hundred  dollars,  and  his  just  profit,  not  needed  in  his 
business,  is  one  tenth  of  that  sum,  he  has  ten  dollars  which  he  may 
legally  use  for  feeding  the  hungry,  clothing  the  naked,  or  carrying 
those  in  poverty  to  whom  transportation  is  one  of  the  necessaries  of 
life,  and  who  suffer  for  lack  of  it.  But  if  he  charges  the  ten  dollars  to 
those  who  pay  him  for  their  transportation,  if  he  charges  them  one 
hundred  and  ten  dollars  for  one  hundred  dollars*  worth  of  service,  he 
is  not  benevolent  himself,  but  he  is  undertaking  to  compel  those  to  be 
benevolent  who  are  entitled  to  his  service ;  he  is  violating  the  common 
right  of  reasonable  terms,  which  cannot  be  increased  by  compulsory 
contributions  for  any  charitable  purpose.  So,  if  he  carries  one  or 
many  for  half  the  reasonable  price,  and  reimburses  himself  by  charging 
others  more  than  the  reasonable  price,  he  is  illegally  administering, 
not  his  own,  but  other  people's  charity.  And  when  he  attempts  to 
justify  an  instance  of  apparent  discrimination  on  the  ground  of  char- 
ity, it  may  be  necessary'  to  ascertain  whose  charity  was  dispensed,  — 
whether  it  was  his,  or  one  forced  by  him  from  others,  including  the 
party  complaining  of  it.  But  it  will  not  be  necessary  to  consider  this 
point  further  until  there  is  some  reason  to  believe  that  what  the  plain- 
tiflF  complains  of  is  defended  as  an  act  of  disinterested  benevolence 
performed  by  the  railroad  at  its  own  expense. 

In  Garton  v.  B.  &  E.  R.  Co.,  1  B.  &  S.  112,  154,  165,  when  it  was 
not  found  that  any  unreasonable  inequality  had  been  made  hy  the 
defendants  to  the  detriment  of  the  plaintiffs,  it  was  held  that  a  reason- 
able price  paid  by  them  was  not  made  unreasonable  by  a  less  price 
paid  by  others,  —  a  proposition  suflScientlj'  plain,  and  expressed  by 
Crompton,  J.,  in  another  form,  when  he  said  to  the  plaintiffs'  counsel 
during  the  argument  of  that  case :  ' '  The  charging  another  person  too 
little  is  not  charging  you  too  much."  The  proposition  takes  it  for 
granted  that  it  has  been  settled  that  the  price  paid  by  the  party  com- 
plaining was  reasonable,  —  a  conclusion  that  settles  the  whole  contro- 
versy as  to  that  price.  But  before  that  conclusion  is  reached,  it  may 
be  necessary  to  determine  whether  the  receipt  of  a  less  price  from 
another  person  was  a  matter  of  charity,  or  an  unreasonable  discrimi* 


158  McDUFFEE  V.   PORTLAND   A   ROCHESTER   RAILROAL. 

nation  and  a  violation  of  the  common  right.  Charging  A  less  than  B 
for  the  same  service,  or  service  of  the  same  value,  is  not  of  itself  neces- 
sarih'  charging  A  too  little,  or  charging  B  too  much ;  but  it  may  be 
evidence  tending  to  showthat  B  is  charged  too  much,  either  b}'  being 
charged  more  than  the  actual  value  of  the  service,  or  b}'  being  made 
the  victim  of  an  unjustifiable  discrimination.  The  doctrine  of  reason- 
ableness is  not  to  be  overturned  b}-  a  conclusive  presumption  that  every 
inequality  of  price  is  the  work  of  alms-giving,  dictated  by  a  motive  of 
humanity.  If  an  apparent  discrimination  turns  out,  on  examination, 
to  have  been,  not  a  discrimination  in  the  performance  of  the  public 
duty,  but  a  private  charity,  there  is  an  end  of  the  case.  But  if  an  ai> 
parent  discrimination  is  found  to  have  been  a  real  one,  the  question 
is  whether  it  was  reasonable,  and,  if  unreasonable,  whether  the  party 
complaining  was  injured  by  it. 

In  some  cases,  this  may  be  an  inquiry  of  some  diiBculty  in  each  of 
its  branches.  But  such  difficult}-  as  there  may  be  will  arise  from  tlie 
breadth  of  the  inquiry,  the  intricate  nature  of  the  matter  to  be  investi- 
gated, the  circumstantial  character  of  the  evidence  to  be  weighed,  and 
the  application  of  the  legal  rule  to  the  facts,  and  not  from  any  want  of 
clearness  or  certainty  in  the  general  principle  of  the  common  law  ap- 
plicable to  the  subject.  The  difficulty  will  not  be  in  the  common  law, 
and  cannot  be  justl}'  overcome  b}-  altering  that  law.  The  inquir}-  may 
sometimes  be  a  broad  one,  but  it  will  never  be  broader  than  the  justice 
of  the  case  requires.  A  narrow  view  that  would  be  partial  cannot  be 
taken  ;  a  narrow  test  of  right  and  wrong  that  would  be  grossly  inequi- 
table cannot  be  adopted.  If  the  doctrine  of  reasonableness  is  not  the 
doctrine  of  justice,  it  is  for  him  who  is  dissatisfied  with  it  to  show  its 
injustice ;  if  it  is  the  doctrine  of  justice,  it  is  for  him  to  show  the 
grounds  of  his  discontent. 

The  decision  in  N.  E.  Express  Co.  v.  M.  C.  R.  Co.,  57  Me.  188,  sat- 
isfactorily disposed  of  the  argument,  vigorously  and  abl^'  pressed  by 
the  defendants  in  that  case,  that  a  railroad,  carrying  one  expressman 
and  his  freight  on  passenger  trains,  on  certain  reasonable  conditions, 
but  under  an  agreement  not  to  perform  a  like  service  for  others,  does 
not  thereby  hold  itself  out  as  a  common  carrier  of  expressmen  and 
their  freight  on  passenger  trains,  on  similar  conditions.  So  far  as  the 
common  right  of  mere  transportation  is  concerned,  and  without  reference 
to  the  peculiar  liability  of  a  common  carrier  of  goods  as  an  insurer, 
such  an  arrangement  would,  necessarih'  and  without  hesitation,  be 
found,  by  the  court  or  the  jury,  to  be  an  evasion.  A  railroad  corpora- 
tion, carr3ing  one  expressman,  and  enabling  him  to  do  all  the  express 
business  on  the  line  of  their  road,  do  hold  themselves  out  as  common 
carriers  of  expresses ;  and  when  the}'  unreasonably  refuse,  directl}-  or 
indirectly,  to  can*}'  an)'  more  public  servants  of  that  class,  the}'  perform 
this  duty  with  illegal  partiality.  The  legal  principle,  which  establishes 
and  secures  the  common  right,  being  the  perfection  of  reason,  the  right 
U  not  a  mere  nominal  one.  and  is  in  no  danger  of  being  destrojed  by 


McPUFFEE   V.   PORTLAND   &   EOCUESTER   RAILROAD.  159 

a  quibble.  If  there  could  possibly  be  a  ease  in  which  the  exclusive 
unangeinent  in  favor  of  one  expressman  would  not  be  an  evasion  of 
the  common-law  right,  the  question  might  arise  whether,  under  our 
statute  law  (Gen.  Stats,  chs.  145,  146,  149,  150),  public  railroad  cor- 
porations are  not  common  carriers  (at  least  to  the  extent  of  furnishing 
reasonable  facilities  and  accommodations  of  transportation  on  reason- 
able terms)  of  such  passengers  and  such  freight  as  there  is  no  good 
reason  fur  their  refusing  to  carrj'. 

The  public  would  seem  to  have  reason  to  claim  that  the  clause  of 
Gen.  Stats,  ch.  146,  sec.  1,  —  "  Railroads  being  designed  for  the  public 
accommodation,  like  other  highways,  are  public,"  —  is  a  very  compre- 
hensive provision  ;  that  public  agents,  taking  private  propert}'  for  the 
public  use,  are  bound  to  treat  all  alike  (that  is,  without  unreasonable 
preference)  so  far  as  the  property  is  used,  or  its  use  is  rightfully  de- 
manded, by  the  public  for  whose  use  it  was  taken  ;  and  that,  in  a 
country  professing  to  base  its  institutions  on  the  natural  equalitj-  of 
men  in  respect  to  legal  rights  and  remedies,  it  cannot  be  presumed 
that  the  legislature  intended,  in  the  charter  of  a  common  carrier,  to 
grant  an  implied  power  to  create  monopolies  in  the  express  business, 
or  in  any  other  business,  by  undue  and  unreasonable  discriminations. 
There  would  seem  to  be  great  doubt  whether,  upon  any  fair  construc- 
tion of  general  or  special  statutes,  a  common  carrier,  incorporated  in 
this  country,  could  be  held  to  have  received  from  the  legislature  the 
power  of  making  unreasonable  discriminations  and  creating  monopolies, 
unless  such  power  were  conferred  in  very  explicit  terms.  And,  if  sugh 
power  were  attempted  to  be  conferred,  there  would  be,  in  this  State,  a 
question  of  the  constitutional  authority  of  the  legislature  to  convey  a 
prerogative  so  hostile  to  the  character  of  our  institutions  and  the  spirit 
of  the  organic  law.  But,  resting  the  decision  of  this  case,  as  we  do, 
on  the  simple,  elementary,  and  unrepealed  principle  of  the  common 
law,  equall}'  applicable  to  individuals  and  corporations,  we  have  no 
occasion,  at  present,  to  go  into  these  other  inquiries. 

Case  discharged.^ 

1  Compare :  Pickford  v.  G.  J.  Ry.,  10  M.  &  W.  397 ;  Parker  v.  G.  W.  Ry.,  7  M.  & 
G.  2.53;  Parker  v.  G.  W.  Ky.,  11  C.B.  545;  Sandford  v.  R.  K.,  24  Pa.  378;  New  Eng. 
Exp.  Co.  V.  R.  li.,  57  Me.  188. —  Ed. 


160  THE  EXPRESS  CASES. 


THE  EXPRESS   CASES. 
Supreme  Court  of  the  United  States,  1886. 
[117  U.S.  1.] 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court.* 

These  suits  present  substantially  the  same  questions  and  ma}'  prop> 
erly  be  considered  together.  They  were  each  brought  by  an  express 
company  against  a  railway  company  to  restrain  the  railwa}-  company 
from  interfering  with  or  disturbing  in  an}'  manner  the  facilities  there- 
tofore afforded  the  express  company'  for  doing  its  business  on  the 
railway  of  the  railway  company.  .  .  .  The  evidence  shows  that  the 
express  business  was  first  organized  in  the  United  States  about  the 
year  1839.  ...  It  has  become  a  public  necessit}-,  and  ranks  in  im- 
portance with  the  mails  and  with  the  telegraph.  It  employs  for  the 
purposes  of  transportation  all  the  important  railroads  in  the  United 
States,  and  a  new  road  is  rarely  opened  to  the  public  without  being 
equipped  in  some  form  with  express  facilities.  It  is  used  in  almost 
ever}'  conceivable  way,  and  for  almost  every  conceivable  purpose,  by 
the  people  and  by  the  government.  All  have  become  accustomed  to 
it,  and  it  cannot  be  taken  away  without  breaking  up  many  of  the  long 
settled  habits  of  business,  and  interfering  materially  with  the  con- 
veniences of  social  life. 

In  this  connection  it  is  to  be  kept  in  mind  that  neither  of  the  rail- 
road companies  involved  in  these  suits  is  attempting  to  deprive  the 
general  public  of  the  advantages  of  an  express  business  over  its  road. 
The  controversy,  in  each  case,  is  not  with  the  public  but  with  a  single 
express  company.  And  the  real  question  is  not  whether  the  railroad 
companies  are  authorized  by  law  to  do  an  express  business  themselves  ; 
nor  whether  they  must  carry  express  matter  for  the  public  on  their 
passenger  trains,  in  the  immediate  charge  of  some  person  specially 
appointed  for  that  purpose ;  nor  whether  they  shall  carry  express 
freights  for  express  companies  as  they  carry  like  freights  for  the  gen- 
eral public ;  but  whether  it  is  their  duty  to  furnish  the  Adams  Com- 
pany or  the  Southern  Company  facilities  for  doing  an  express  business 
upon  their  roads  the  same  in  all  respects  as  those  they  provide  for 
themselves  or  afford  to  any  other  express  company. 

When  the  business  began  railroads  were  in  their  infancy.  They 
were  few  in  number,  and  for  comparatively  short  distances.  There 
has  never  been  a  time,  however,  since  the  express  business  was  started 
that  it  has  not  been  encouraged  by  the  railroad  companies,  and  it  is 
no  doubt  true,  as  alleged  in  each  of  the  bills  filed  in  these  cases,  that 
'*  no  railroad  company  in  the  United  States  .  .  .  has  ever  refused  to 
transport  express  matter  for  the  public,  upon  the  application  of  some 
express  company  of  some  form  of  legal  constitution.     Every  railway 

'  Part  of  the  opinion  is  omitted.  —  Ed. 


THE   EXPRESS   CASES.  161 

company  .  .  .  has  recognized  the  right  of  the  public  to  demand  trans- 
portation by  the  railway  facilities  which  the  public  has  permitted  to  be 
created,  of  that  class  of  matter  which  is  known  as  express  matter." 
Express  companies  have  undoubtedly  invested  their  capital  and  built 
up  their  business  in  the  hope  and  expectation  of  securing  and  keeping 
for  themselves  such  railway  facilities  as  they  needed,  and  railroad  com- 
panies have  likewise  relied  upon  the  express  business  as  one  of  their 
important  sources  of  income. 

But  it  is  neither  averred  in  the  bills,  nor  shown  bj'  the  testimony, 
that  an}'  railroad  company  in  the  United  States  has  ever  held  itself 
out  as  a  common  carrier  of  express  companies,  that  is  to  say,  as  a 
common  carrier  of  common  carriers.  On  the  contrary  it  has  been 
shown,  and  in  fact  it  was  conceded  upon  the  argument,  that,  down  to 
the  time  of  bringing  these  suits,  no  railroad  company  had  taken  an 
express  company'  on  its  road  for  business  except  under  some  special  con- 
tract, verbal  or  written,  and  generally  written,  in  which  the  rights  and  the 
duties  of  the  respective  parties  were  carefuUj'  fixed  and  defined.  These 
contracts,  as  is  seen  by  those  in  these  records,  vary  necessarily-  in  their 
details,  according  to  the  varying  circumstances  of  each  particular  case, 
and  according  to  the  judgment  and  discretion  of  the  parties  immedi- 
ately concerned.  It  also  appears  that,  with  very  few  exceptions,  only 
one  express  company  has  been  allowed  by  a  railroad  company  to  do 
business  on  its  road  at  the  same  time.  In  some  of  the  States,  statutes 
have  been  passed  which,  either  in  express  terms  or  b}*  judicial  inter- 
pretation, require  railroad  companies  to  furnish  equal  facilities  to  all 
express  companies,  Gen.  Laws  N.  H.,  1878,  ch.  163,  §  2;  Rev.  Stat. 
Maine,  1883,  494,  ch.  51,  §  134;  but  these  are  of  comparative  recent 
origin,  and  thus  far  seem  not  to  have  been  generally  adopted.  .  .  . 

The  reason  is  obvious  wh}'  special  contracts  in  reference  to  this  busi- 
ness are  necessary.  The  transportation  required  is  of  a  kind  which 
must,  if  possible,  be  had  for  the  most  part  on  passenger  trains.  It 
requires  not  only  speed,  but  reasonable  certainty  as  to  the  quantity 
that  will  be  carried  at  any  one  time.  As  the  things  carried  are  to  be 
kept  in  the  personal  custody  of  the  messenger  or  other  emplo3'e  of  the 
express  corapan}-,  it  is  important  that  a  certain  amount  of  car  space 
should  be  specially'  set  apart  for  the  business,  and  that,  this  should,  as 
far  as  practicable,  be  put  in  the  exclusive  possession  of  the  express- 
man in  charge.  As  the  business  to  be  done  is  "  express,"  it  implies 
access  to  the  train  for  loading  at  the  latest,  and  for  unloading  at  the 
earliest,  convenient  moment.  All  this  is  entirely  inconsistent  with  the 
idea  of  an  express  business  on  passenger  trains  free  to  all  express 
carriers.  Railroad  companies  are  by  law  carriers  of  both  persons  and 
property.  Passenger  trains  have  from  the  beginning  been  provided  for 
the  transportation  primarily  of  passengers  and  their  baggage.  This 
must  be  done  with  reasonable  promptness  and  with  reasonable  comfort 
to  the  passenger.  The  express  business  on  passenger  trains  is  in  a 
degree  subordinate  to  the  passenger  business,  and  it  is  consequently 

11 


162  THE   EXPRESS   CASES. 

the  dntj*  of  a  railroad  companj'  in  arranging  for  the  express  to  see  that 
there  is  as  little  interference  as  possible  with  the  wants  of  passengers. 
This  implies  a  special  understanding  and  agreement  as  to  the  amount 
of  car  space  that  will  be  afforded,  and  the  conditions  on  which  it  is  to 
be  occupied,  the  particular  trains  that  can  be  used,  the  places  at  which 
the}'  shall  stop,  the  price  to  be  paid,  and  all  the  varying  details  of  a 
business  which  is  to  be  adjusted  between  two  public  servants,  so  that 
each  can  perform  in  the  best  manner  its  own  particular  duties.  All 
this  must  necessaril}'  be  a  matter  of  bargain,  and  it  by  no  means  fol- 
lows that,  because  a  railroad  company  can  serve  one  express  corapan}' 
in  one  wa}',  it  can  as  well  serve  another  compan}-  in  the  same  wa)-,  and 
still  perforin  its  other  obligations  to  the  public  in  a  satisfactory-  manner. 
The  car  space  that  can  be  given  to  the  express  business  on  a  passenger 
train  is,  to  a  certain  extent,  limited,  and,  as  has  been  seen,  that  which 
is  allotted  to  a  particular  carrier  must  be,  in  a  measure,  under  his  exclu- 
sive control.  No  express  company  can  do  a  successful  business  unless 
it  is  at  all  times  reasonably  sure  of  the  means  it  requires  for  trans- 
portation. On  important  lines  one  company  will  at  times  fill  all  the 
space  the  railroad  company  can  well  allow  for  the  business.  If  this 
space  had  to  be  divided  among  several  companies,  there  might  be  occa- 
sions when  the  public  would  be  put  to  inconvenience  b}'  delays  which 
could  otherwise  be  avoided.  So  long  as  the  public  are  served  to  their 
reasonable  satisfaction,  it  is  a  matter  of  no  importance  who  serves 
them.  The  railroad  company  performs  its  whole  dut}-  to  the  public  at 
large  and  to  each  individual  when  it  affords  the  public  all  reasonable 
express  accommodations.  If  this  is  done  the  railroad  compan}'  owes 
no  duty  to  the  public  as  to  the  particular  agencies  it  shall  select  for 
that  purpose.  The  public  require  the  carriage,  but  the  company  may 
choose  its  own  appropriate  means  of  carriage,  always  provided  the}'  are 
such  as  to  insure  reasonable  promptness  and  security. 

The  inconvenience  that  would  come  from  allowing  more  than  one 
express  compan}'  on  a  railroad  at  the  same  time  was  apparently  so 
well  understood  both  by  the  express  companies  and  the  railroad  com- 
panies that  the  three  principal  express  companies,  the  Adams,  the 
American,  and  the  United  States,  almost  immediately  on  their  organ- 
ization, now  more  than  thirty  years  ago,  bj'  agreement  divided  the 
territory  in  the  United  States  traversed  b}-  railroads  among  themselves, 
and  since  that  time  each  has  confined  its  own  operations  to  the  par- 
ticular roads  which,  under  this  division,  have  been  set  apart  for  its 
special  use.  No  one  of  these  companies  has  ever  interfered  with  the 
other,  and  each  has  worked  its  allotted  territory,  always  extending  its 
lines  in  the  agreed  directions  as  circumstances  would  permit.  At  the 
beginning  of  the  late  civil  war  the  Adams  Company  gave  up  its  terri- 
tor}'  in  the  Southern  States  to  the  Southern  Company,  and  since  then 
the  Adams  and  the  Southern  have  occupied,  under  arrangements 
between  themselves,  that  part  of  the  ground  originally  assigned  to  the 
Adams  alone.     In  this  way  these  three  or  four  important  and  influ- 


THE   EXPRESS   CASES.  163 

ential  companies  were  able  substantially  to  control,  from  1854  until 
about  the  time  of  the  bringing  of  these  suits,  all  the  railway'  express 
business  in  the  United  States,  except  upon  the  Pacific  roads  and  in 
certain  comparatively  limited  localities.  In  fact,  as  is  stated  in  the 
argument  for  the  express  companies,  the  Adams  was  occupying  when 
these  suits  were  brought,  one  hundred  and  fifty-five  railroads,  with  a 
mileage  of  21,216  miles,  the  American  two  hundred  roads,  with  a  mile- 
age of  28,000  miles,  and  the  Southern  ninety-five  roads,  with  a  mileage 
of  10,000  miles.  Through  their  business  arrangements  with  each  other, 
and  with  other  connecting  lines,  they  have  been  able  for  a  long  time 
to  receive  and  contract  for  the  deliver}'  of  any  package  committed  to 
their  charge  at  almost  any  place  of  importance  in  the  United  States 
and  in  Canada,  and  even  at  some  places  in  Europe  and  the  West 
Indies.  The}'  have  invested  millions  of  dollars  in  their  business,  and 
have  secured  public  confidence  to  such  a  degree  that  they  are  trusted 
unhesitatingl}'  by  all  who  need  their  services.  The  good  v/ill  of  their 
business  is  of  verj'  great  value,  if  they  can  keep  their  present  facilities 
for  transportation.  The  longer  their  lines  and  the  more  favorable  their 
connections,  the  greater  will  be  their  own  profits,  and  the  better  tlieir 
means  of  serving  the  public.  In  making  their  investments  and  in 
extending  their  business,  the}-  have  undoubtedly  relied  on  securing  and 
keeping  favorable  railroad  transportation,  and  in  this  they  were  en- 
couraged by  the  apparent  willingness  of  railroad  companies  to  accom- 
modate them ;  but  the  fact  still  remains  that  they  have  never  been 
allowed  to  do  business  on  any  road  except  under  a  special  contract, 
and  that  as  a  rule  only  one  express  company  has  been  admitted  on  a 
road  at  the  same  time. 

The  territory  traversed  by  the  railroads  involved  in  the  present  suits 
is  part  of  that  allotted  in  the  division  between  the  express  companies 
to  the  Adams  and  Southern  companies,  and  in  due  time  after  the  roads 
were  built  these  companies  contracted  with  the  railroad  companies  for 
the  privileges  of  an  express  business.  The  contracts  were  all  in  writ- 
ing, in  which  the  rights  of  the  respective  parties  were  clearly  defined, 
and  there  is  now  no  dispute  about  what  they  were.  Each  contract 
contained  a  provision  for  its  termination  by  either  party  on  notice. 
That  notice  has  been  given  in  all  the  cases  by  the  railroad  companies, 
and  the  express  companies  now  sue  for  relief.  Clearly  this  cannot  be 
afl!brded  by  keeping  the  contracts  in  force,  for  both  parties  have  agreed 
that  they  may  be  terminated  at  any  time  by  either  party  on  notice ; 
nor  by  making  new  contracts,  because  that  is  not  within  the  SL*ope 
of  judicial  power. 

The  exact  question,  then,  is  whether  these  express  companies  can  now 
demand  as  a  right  what  they  have  heretofore  had  only  as  by  permission. 
That  depends,  as  is  conceded,  on  whether  all  railroad  companies  are 
now  by  law  charged  with  the  duty  of  carrying  all  express  companies 
in  the  way  that  express  carriers  when  taken  are  usually  carried,  just  as 
they  are  with  the  duty  of  carrying  all  passengers  and  freights  when 


164  THE   EXPRESS   CASES. 

offered  in  the  wa}'  that  passengers  and  freight  are  carried.  The  con- 
tracts which  these  companies  once  had  are  now  out  of  the  way,  and 
the  companies  at  this  time  possess  no  other  rights  than  such  as  belong 
to  an}'  other  company  or  person  wishing  to  do  an  express  business 
upon  these  roads.  If  thej'  are  entitled  to  the  relief  they  ask  it  is 
because  it  is  the  dut}'  of  the  railroad  companies  to  furnish  express 
facilities  to  all  alike  who  demand  them. 

The  constitutions  and  the  laws  of  the  States  in  whi<5h  the  roads  are 
situated  place  the  companies  that  own  and  operate  them  on  the  foot- 
ing of  common  carriers,  but  there  is  nothing  which  in  positive  terms 
requires  a  railroad  compan}-  to  carry  all  express  companies  in  the  way 
that  under  some  circumstances  they  may  be  able  without  inconvenience 
to  carry  one  company.  In  Kansas,  the  Missouri,  Kansas,  and  Texas 
Company  must  furnish  sufficient  accommodations  for  the  transporta- 
tion of  all  such  express  freight  as  ma}*  be  offered,  and  in  each  of  the 
States  of  Missouri,  Arkansas,  and  Kansas  railroad  companies  are  prob- 
abh'  prohibited  from  making  unreasonable  discriminations  in  their  busi- 
ness as  carriers,  but  this  is  all. 

Such  being  the  case,  the  right  of  the  express  companies  to  a  decree 
depends  upon  their  showing  the  existence  of  a  usage,  having  the  force 
of  law  in  the  express  business,  which  requires  railroad  companies  to 
carry  all  express  companies  on  their  passenger  trains  as  express  carri- 
ers are  usuall}'  carried.  It  is  not  enough  to  establish  a  usage  to  carrj' 
some  express  company,  or  to  furnish  the  public  in  some  wa}'  with  the 
advantages  of  an  express  business  over  the  road.  The  question  is  not 
whether  these  railroad  companies  must  furnish  the  general  public  with 
reasonable  express  facilities,  but  whether  they  must  carr}'  these  par- 
ticular express  carriers  for  the  purpose  of  enabling  them  to  do  an 
express  business  over  the  lines. 

In  all  these  voluminous  records  there  is  not  a  syllable  of  evidence  to 
show  a  usage  for  the  carriage  of  express  companies  on  the  passenger 
trains  of  railroads  unless  specially  contracted  for.  While  it  has  uni- 
formly been  the  habit  of  railroad  companies  to  arrange,  at  the  earliest 
practicable  moment,  to  take  one  express  company  on  some  or  all  of 
their  passenger  trains,  or  to  provide  some  other  way  of  doing  an  ex- 
press business  on  their  lines,  it  has  never  been  the  practice  to  grant 
such  a  privilege  to  more  than  one  company  at  the  same  time,  unless  a 
statute  or  some  special  circumstances  made  it  necessary  or  desirable. 
The  express  companies  that  bring  these  suits  are  certainly  in  no  situ- 
ation to  claim  a  usage  in  their  favor  on  these  particular  roads,  because 
their  entr}'  was  originally  under  special  contracts,  and  no  other  compa- 
nies have  ever  been  admitted  except  by  agreement.  B}-  the  terms  of 
their  contracts  they  agreed  that  all  their  contract  rights  on  the  roads 
should  be  terminated  at  the  will  of  the  railroad  compan}*.  They  were 
willing  to  begin  and  to  expand  their  business  upon  this  understanding, 
and  with  this  uncertainty  as  to  the  duration  of  their  privileges.  The 
stoppage  of  their  facilities  was  one  of  the  risks  they  assumed  when 


THE   EXPRESS  CASES.  165 

they  accepted  their  contracts,  and  made  their  investments  under  them. 
If  the  general  public  were  complaining  because  the  railroad  companies 
refused  to  carry  express  matter  themselves  on  their  passenger  trains, 
or  to  allow  it  to  be  carried  by  others,  different  questions  would  be 
presented.  As  it  is,  we  have  onl}^  to  decide  whether  these  particular 
express  companies  must  be  carried  notwithstanding  the  termination  of 
their  special  contract  rights. 

The  difficult}'  in  the  cases  is  apparent  from  the  form  of  the  decrees. 
As  express  companies  had  always  been  carried  b}'  railroad  companies 
under  special  contracts,  which  established  the  duty  of  the  railroad  com- 
pany upon  the  one  side,  and  fixed  the  liability  of  the  express  company 
on  the  other,  the  court,  in  decreeing  the  carriage  was  substantially 
compelled  to  make  for  the  parties  such  a  contract  for  the  business  as 
in  its  opinion  the}'  ought  to  have  made  for  themselves.  Having  found 
that  the  railroad  company  should  furnish  the  express  compan}-  with 
facilities  for  business,  it  had  to  define  what  those  facilities  must  be, 
and  it  did  so  by  declaring  that  they  should  be  furnished  to  the  same 
extent  and  upon  the  same  trains  that  the  company  accorded  to  itself 
or  to  any  other  company  engaged  in  conducting  an  express  business 
on  its  line.  It  then  prescribed  the  time  and  manner  of  making  the 
payment  for  the  facilities  and  how  the  payment  should  be  secured,  as 
well  as  how  it  should  be  measured.  Thus,  by  the  decrees,  these  rail- 
road companies  are  compelled  to  carry  these  express  companies  at 
these  rates,  and  on  these  terms,  so  long  as  they  ask  to  be  carried,  no 
matter  what  other  express  companies  pay  for  the  same  facilities  or 
what  such  facilities  ma}',  for  the  time  being,  be  reasonably  worth,  unless 
the  court  sees  fit,  under  the  power  reserved  for  that  purpose,  on  the 
application  of  either  of  the  parties,  to  change  the  measure  of  compen- 
sation. In  this  way  as  it  seems  to  us,  "  the  court  has  made  an  arrange- 
ment for  the  business  intercourse  of  these  companies,  such  as,  in  its 
opinion,  they  ought  to  have  made  for  themselves,"  and  that,  we  said 
in  Atchison,  Topeka  and  Santa  Fe  Railroad  Co.  v.  Denver  <fc  New 
Orleans  Railroad  Co.,  110  U.  S.  667,  followed  at  this  term  in  Pull- 
mavbS  Palace  Car  Co.  v.  Missouri  Pacific  Railway  Co.,  115  U.  S.  587, 
could  not  be  done.  The  regulation  of  matters  of  this  kind  is  legisla 
tive  in  its  character,  not  judicial.  To  what  extent  it  must  come,  if  it 
comes  at  all,  from  Congress,  and  to  what  extent  it  may  come  from  the 
States,  are  questions  we  do  not  now  undertake  to  decide ;  but  that  it 
must  come,  when  it  does  come,  from  some  source  of  legislative  power, 
we  do  not  doubt.  The  legislature  may  impose  a  duty,  and  when  im- 
posed it  will,  if  necessary,  be  enforced  by  the  courts,  but,  unless  a  duty 
has  been  created  either  by  usage  or  by  contract,  or  by  statute,  the 
courts  cannot  be  called  on  to  give  it  effect. 

The  decree  in  each  of  the  cases  is  reversed,  and  the  suit  is  remanded, 
with  directions  to  dissolve  the  injunction,  and,  after  adjusting  the 
accounts  between  the  parties  for  business  done  while  the  injunc- 
tions were  in  force,  and  decreeing  the  payment  of  any  amounts 
that  may  be  found  to  be  due,  to  dismiss  the  bills. 


166  THE   EXPRESS   CASES. 

Mr.  Justice  Milleu  dissenting. 

When  these  cases  were  argued  before  Circuit  Judge  McCrary  and 
myself  at  St.  Louis,  after  due  consideration  and  consultation  with  him 
and  Judge  Treat,  of  the  District  Court,  I  announced  certain  proposi- 
tions as  the  foundations  on  which  the  decrees  should  be  rendered. 
These  were  afterwards  entered  in  the  various  circuits  to  which  the 
cases  properly  belonged,  and,  1  believe,  in  strict  accordance  with  the 
principles  thus  announced. 

I  am  still  of  opinion  that  those  principles  are  sound,  and  I  repeat 
them  here  as  the  reasons  of  my  dissent  from  the  judgment  of  the 
court  now  pronounced  in  these  cases. 

They  met  the  approval  of  Judge  McCrary  when  they  were  submitted 
to  his  consideration.  They  were  filed  in  the  court  in  the  following 
language : 

"1.  I  am  of  opinion  that  what  is  known  as  the  express  business  is 
a  branch  of  the  carrying  trade  that  has,  by  the  necessities  of  com- 
merce and  the  usages  of  those  engaged  in  transportation,  become 
known  and  recognized. 

"That,  while  it  is  not  possible  to  give  a  definition  in  terms  which 
will  embrace  all  classes  of  articles  usually  so  carried,  and  to  define  it 
with  a  precision  of  words  of  exclusion,  the  general  character  of  the 
business  is  sufficientl}'  known  and  recognized  to  require  the  court  to 
take  notice  of  it  as  distinct  from  the  transportation  of  the  large  mass 
of  freight  usually  carried  on  steamboats  and  railroads. 

"  That  the  object  of  this  express  business  is  to  carry  small  and  valu- 
able packages  rapidly,  in  such  a  manner  as  not  to  subject  them  to  the 
danger  of  loss  and  damage,  which,  to  a  greater  or  less  degree,  attends 
the  transix>rtation  of  heav}'  or  bulky  articles  of  commerce,  as  grain, 
flour,  iron,  ordinary'  merchandise,  and  the  like. 

"2.  It  has  become  law  and  usage,  and  is  one  of  the  necessities  of 
this  business,  that  these  packages  should  be  in  the  immediate  charge  of 
an  agent  or  messenger  of  the  person  or  compan}-  engaged  in  it,  and  to 
refuse  permission  to  this  agent  to  accompany  these  packages  on  steam- 
boats or  railroads  on  which  they  are  carried,  and  to  deny  them  the 
right  to  the  control  of  them  while  so  carried,  is  destructive  of  the 
business  and  of  the  rights  which  the  public  have  to  the  use  of  the  rail- 
roads in  this  class  of  transportation. 

"  3.  I  am  of  the  opinion  that  when  express  matter  is  so  confided 
to  the  charge  of  an  agent  or  messenger,  the  railroad  compan}-  is  no 
longer  liable  to  all  the  obligations  of  a  common  carrier,  but  that  when 
loss  or  injury  occurs,  the  liability  depends  upon  the  exercise  of  due 
care,  skill,   and  diligence  on  the  part  of  the  railroad  company. 

"4.  That,  under  these  circumstances,  there  does  not  exist  on  the 
part  of  the  railroad  company  the  right  to  open  and  inspect  all  pack- 
ages so  carried,  especially  when  they  have  been  duly  closed  or  sealed 
up  by  their  owners  or  by  the  express  carrier. 

**  5.   I  am  of  the  opinion  that  it  is  the  duty  of  every  railroad  com* 


THE   EXPRESS   CASES.  167 

pany  to  provide  such  conveyance  by  special  cars,  or  otherwise,  attached 
to  their  freight  and  passenger  trains,  as  are  required  for  the  safe  and 
proper  transportation  of  this  express  matter  on  their  roads,  and  that 
tlie  use  of  these  facilities  should  be  extended  on  equal  terms  to  all  who 
are  actually  and  usually  engaged  in  the  express  business. 

"  If  the  number  of  persons  claiming  the  right  to  engage  in  this  busi- 
ness at  the  same  time,  on  the  same  road,  should  become  oppressive, 
other  considerations  might  prevail ;  but  until  such  a  state  of  affairs 
is  shown  to  be  actually  in  existence  in  good  faith,  it  is  unnecessary 
to  consider  it. 

"  6.  This  express  matter  and  the  person  in  charge  of  it  should  be 
carried  by  the  railroad  company  at  fair  and  reasonable  rates  of  com- 
pensation ;  and  where  the  parties  concerned  cannot  agree  upon  what 
that  is,  it  is  a  question  for  the  courts  to  decide. 

"  7.  I  am  of  the  opinion  that  a  court  of  equity,  in  a  case  properly 
made  out,  tas  the  authority  to  compel  the  railroad  companies  to  carry 
this  express  matter,  and  to  perform  the  duties  in  that  respect  which  I 
have  already  indicated,  and  to  make  such  orders  and  decrees,  and  to 
enforce  them  bj'  the  ordinary  methods  in  use  necessary  to  that  end. 

"  8.  While  I  doubt  the  right  of  the  court  to  fix  in  advance  the  pre- 
cise rates  which  the  express  companies  shall  pay  and  the  railroad 
companj'  shall  accept,  I  have  no  doubt  of  its  right  to  compel  the 
performance  of  the  service  by  the  railroad  company,  and  after  it  is 
rendered  to  ascertain  the  reasonable  compensation  and  compel  its 
payment. 

"  9.  To  permit  the  railway  compan}^  to  fix  upon  a  rate  of  com- 
pensation which  is  absolute,  and  insist  upon  the  payment  in  advance  or 
at  the  end  of  every  train,  would  be  to  enable  them  to  defeat  the  just 
rights  of  the  express  companies,  to  destro}'  their  business,  and  would 
be  a  practical  denial  of  justice. 

"  10.  To  avoid  this  difficulty,  I  think  that  the  court  can  assume 
that  the  rates,  or  other  mode  of  compensation  heretofore  existing  be- 
tween any  such  companies  are  prima  facie  reasonable  and  just,  and 
can  require  the  parties  to  conform  to  it  as  the  business  progresses,  with 
the  right  to  either  party  to  keep  and  present  an  account  of  the  busi- 
ness to  the  court  at  stated  intervals,  and  claim  an  addition  to,  or 
rebate  from,  the  amount  paid.  And  to  secure  the  railroad  companies 
in  any  sum  which  may  be  thus  found  due  them,  a  bond  from  the  ex- 
press company  may  be  required  in  advance. 

"11.  When  no  such  arrangement  has  heretofore  been  in  existence 
it  is  competent  for  the  court  to  devise  some  mode  of  compensation  to 
be  paid  as  the  business  progresses,  with  like  power  of  final  revision  on 
evidence,  reference  to  master,  &c. 

"12.  I  am  of  opinion  that  neither  the  statutes  nor  constitutions 
of  Arkansas  or  Missouri  were  intended  to  affect  the  right  asserted  in 
these  cases  ;  nor  do  they  present  any  obstacle  to  such  decrees  as  may 
enforce  the  right  of  the  express  companies." 


168  THE   EXPRESS   CASES. 

Three  years'  reflection  and  the  renewed  and  able  argument  in  this 
court  have  not  changed  my  belief  in  the  soundness  of  these  principles. 

That  there  may  be  slight  errors  in  the  details  of  the  decrees  of  the 
Circuit  Courts  made  to  secure  just  compensation  for  the  services  of  the 
railroad  companies  is  possibly  true,  but  I  have  not  discovered  them, 
and  the  attention  of  the  court  has  not  been  given  to  them  in  deciding 
this  case ;  for  holding,  as  it  does,  that  the  complainants  were  entitled 
to  no  relief  whatever,  it  became  unnecessary  to  consider  the  details  of 
the  decrees. 

I  only  desire  to  add  one  or  two  observations  in  regard  to  matters 
found  in  the  opinion  of  this  court. 

1.  The  relief  sought  in  these  cases  is  not  sought  on  the  ground  of 
usage  in  the  sense  that  a  long  course  of  dealing  with  the  public  has 
established  a  custom  in  the  nature  of  law.  Usage  is  onl}'  relied  on  as 
showing  that  the  business  itself  has  forced  its  wa}*  into  general  recog- 
nition as  one  of  such  necessity  to  the  public,  and  so  dfstinct  and 
marked  in  its  character,  that  it  is  entitled  to  a  consideration  diflfer- 
ent  from  other  modes  of  transportation. 

2.  It  is  said  that  the  regulation  of  the  duties  of  carrying  by  the 
railroads,  and  of  the  compensation  they  shall  receive,  is  legislative  in 
its  character  and  not  judicial. 

As  to  the  duties  of  the  railroad  company,  if  they  are  not,  as  com- 
mon carriers,  under  legal  obligation  to  carry  express  matter  for  any 
one  engaged  in  that  business  in  the  manner  appropriate  and  usual  in 
such  business,  then  there  is  no  case  for  the  relief  sought  in  these  bills. 
But  if  they  are  so  bound  to  carry,  then  in  the  absence  of  any  legislative 
rule  fixing  their  compensation  I  maintain  that  that  compensation  is 
a  judicial  question. 

It  is,  then,  the  ordinary  and  ever-recurring  question  on  a  quantum 
meruit.  The  railroad  company  renders  the  service  which,  by  the  law 
of  its  organization,  it  is  bound  to  render.  The  express  companj'  re- 
fuses to  pay  for  this  the  price  which  the  railroad  company  demands, 
because  it  believes  it  to  be  exorbitant.  That  it  is  a  judicial  question  to 
determine  what  shall  be  paid  for  the  service  rendered,  in  the  absence 
of  an  express  contract,  seems  to  me  beyond  doubt 

That  the  legislature  may,  in  proper  case,  fix  the  rule  or  rate  of  com- 
pensation, I  do  not  deny.  But  until  this  is  done  the  court  must  decide 
it,  when  it  becomes  matter  of  controversy. 

The  opinion  of  the  court,  while  showing  its  growth  and  importance, 
places  the  entire  express  business  of  the  countrj'  wholly  at  the  mercy 
of  the  railroad  companies,  and  suggests  no  means  b}'  which  they  can 
be  compelled  to  do  it.  According  to  the  principles  there  announced, 
no  railroad  company  is  bound  to  receive  or  carry  an  express  messen- 
ger or  his  packages.  If  they  choose  to  reject  him  or  his  packages, 
they  can  throw  all  the  business  of  the  country  back  to  the  crude  condi- 
tion in  which  it  was  a  half-century  ago,  before  Harnden  established 
his  local  express  between  the  large  Atlantic  cities ;  for,  let  it  be  remem* 


OLD  COLONY  RAILROAD  V.   TRIPP.  169 

bered  that  plaintiffs  have  never  refused  to  paj-  the  railroad  companies 
reasonable  compensation  for  their  services,  but  those  companies  refuse 
to  carry  for  them  at  any  price  or  under  any  circumstances. 

I  am  very  sure  such  a  proposition  as  this  will  not  long  be  acquiesced 
in  by  the  great  commercial  interests  of  the  country  and  by  the  public, 
whom  both  railroad  companies  and  the  express  men  are  intended  to 
serve.  If  other  courts  should  follow  ours  in  this  doctrine,  the  evils  to 
ensue  will  call  for  other  relief. 

It  is  in  view  of  amelioration  of  these  great  evils  that,  in  dissenting 
here,  I  announce  the  principles  which  I  earnestly  believe  ought  to  con- 
trol the  actions  and  the  rights  of  these  two  great  public  services. 

Mr.  Justice  Field  dissenting. 

I  agree  with  Mr.  Justice  Miller  in  the  positions  he  has  stated, 
although  in  the  cases  just  decided  I  think  the  decrees  of  the  courts 
below  require  modification  in  several  particulars ;  they  go  too  far. 
But  I  am  clear  that  railroad  companies  are  bound,  as  common  carriers, 
to  accommodate  the  public  in  the  transportation  of  goods  according  to 
its  necessities,  and  through  the  instrumentalities  or  in  the  mode  best 
adapted  to  promote  its  convenience.  Among  these  instrumentalities 
express  companies,  by  the  mode  in  which  their  business  is  conducted, 
are  the  most  important  and  useful. 

Mb.  Justice  Matthews  took  no  part  in  the  decision  of  these  cases.* 


OLD  COLONY  RAILROAD  v.,   TRIPP. 

Supreme  Judicial  Court  op  Massachusetts,  1888. 

[147  Mass.  35 ;  17  N.  E.  89.] 

W.  Allen,  J.,  delivered  the  opinion  of  the  court. 

Whatever  implied  license  the  defendant  may  have  had  to  enter  the 
plaintiff's  close  had  been  revoked  by  the  regulations  made  by  the 
plaintiff  for  the  management  of  its  business  and  the  use  of  its  property 
in  its  business.  The  defendant  entered  under  a  claim  of  right,  and 
can  justify  his  entry  only  by  showing  a  right  superior  to  that  of  the 
plaintiff.  The  plaintiff  has  all  the  rights  of  an  owner  in  possession, 
except  such  as  are  inconsistent  with  the  public  use  for  which  it  holds 
its  franchise;  that  is,  with  its  duties  as  a  common  carrier  of  persons 
and  merchandise.  As  concerns  the  case  at  bar,  the  plaintiff  is  obliged 
to  be  a  common  carrier  of  passengers ;  it  is  its  duty  to  furnish  rea- 
sonable facilities  and  accommodations  for  the  use  of  all  persons  who 
seek  for  transportation  over  its  road.  It  provided  its  depot  for  the 
use  of  persons  who  were  transported  on  its  cars  to  or  from  the  sta- 

1  Ace.  Pfister  v.  R.  R.,  70  Cal.  169  ;  Louisville,  &c.  Ry.  v.  Keefer,  146  Ind.  21  ;  44 
N.  E.  796;  Sargent  v.  R.  R.,  115  Mass.  416;  Exp.  Co.  v.  R.  R.,  Ill  N.  C.  463;  16  & 
E.  393.  —  Ed. 


170  OLD   COLONY   RAILROAD   V.   TlIIPP. 

Hon,  and  holds  it  for  that  use;  and  it  has  no  right  to  exclude  from  it 
persons  seeking  access  to  it  for  the  use  for  which  it  was  intended  and 
is  maintained.  It  can  subject  the  use  to  rules  and  regulations;  but 
by  statute,  if  not  by  common  law,  the  regulations  must  be  such  as  to 
secure  reasonable  and  equal  use  of  the  premises  to  all  having  such 
right  to  use  them.  See  Pub.  Stat.  chap.  112,  §  188;  Fitchburg  Railroad 
r.  Gage,  12  Gray,  393;  Spofford  v.  Boston  «fe  Maine  Railroad,  128 
Mass.  326.  The  station  was  a  passenger  station.  Passengers  taking 
and  leaving  the  cars  at  the  station,  and  persons  setting  down  passen- 
gers or  delivering  merchandise  or  baggage  for  transportation  from 
the  station,  or  taking  up  passengers  or  receiving  merchandise  that 
had  been  transported  to  the  station,  had  a  right  to  use  the  station 
buildings  and  grounds,  superior  to  the  right  of  the  plaintiff  to  exclu- 
sive occupancy.  All  such  persons  had  business  with  the  plaintiff, 
which  it  was  bound  to  attend  to  in  the  place  and  manner  which  it  had 
provided  for  all  who  had  like  business  with  it. 

The  defendant  was  allowed  to  use  the  depot  for  any  business  that 
he  had  with  the  plaintiff.  But  he  had  no  business  to  transact  with 
the  plaintiff.  He  had  no  merchandise  or  baggage  to  deliver  to  the 
plaintiff  or  to  receive  from  it.  His  purpose  was  to  use  the  depot  as  a 
place  for  soliciting  contracts  with  incoming  passengers  for  the  trans- 
portation of  their  baggage.  The  railroad  company  may  be  under 
obligation  to  the  passenger  to  see  that  he  has  reasonable  facilities  for 
pi'ocuring  transportation  for  himself  and  his  baggage  from  the  station, 
where  his  transit  ends.  What  conveniences  shall  be  furnished  to 
passengers  within  the  station  for  that  purpose  is  a  matter  wholly  be- 
tween them  and  the  company.  The  defendant  is  a  stranger  both  to 
the  plaintiff  and  to  its  passengers,  and  can  claim  no  rights  against  the 
plaintiff  to  the  use  of  its  station,  either  in  his  own  right  or  in  the 
right  of  passengers.  The  fact  that  he  is  willing  to  assume  relations 
with  any  passenger,  which  will  give  him  relations  with  the  plaintiff 
involving  the  right  to  use  the  depot,  does  not  establish  such  rela- 
tions or  such  right;  and  the  right  of  passengers  to  be  solicited  by 
drivers  of  hacks  and  job-wagons  is  not  such  as  to  give  to  all  such 
drivers  a  right  to  occupy  the  platforms  and  depots  of  railroads. 
If  such  right  exists,  it  exists,  under  the  statute,  equally  for  all;  and 
railroad  companies  are  obliged  to  admit  to  their  depots,  not  only 
persons  having  business  there  to  deliver  or  receive  passengers  or 
merchandise,  but  all  persons  seeking  such  business,  and  to  furnish 
reasonable  and  equal  facilities  and  conveniences  for  all  such. 

The  only  case  we  have  seen  which  seems  to  lend  any  countenance 
to  the  position  that  a  railroad  company  has  no  right  to  exclude  per- 
sons from  occupying  its  depots  for  the  pui-pose  of  soliciting  the 
patronage  of  passengers  is  Markham  v.  Brown,  8  N.  H.  523,  in 
which  it  was  held  that  an  innholder  had  no  right  to  exclude  from  his 
inn  a  stagedriver  who  entered  it  to  solicit  guests  to  patronize  his 
stage  in  opposition  to  a  driver  of  a  rival  line  who  had  been  admitted 


OLD   COLONY   RAILROAD  V.   TRIPP.  171 

for  a  like  purpose.  It  was  said  to  rest  upon  the  right  of  the  passen- 
gers rather  than  that  of  the  driver.  However  it  may  be  with  a  guest 
at  an  inn,  we  do  not  think  that  passengers  in  a  railroad  depot  have 
such  possession  of  a  right  in  the  premises  as  will  give  to  carriers  of 
baggage,  soliciting  their  patronage,  an  implied  license  to  enter,  irrev. 
ocable  by  the  railroad  company.  Barney  r.  Oyster  Bay  H.  Steam- 
boat Co.  67  N.  Y.  301,  and  Jencks  v.  Coleman,  2  Sumn.  221,  are 
cases  directly  in  point.  See  also  Com.  v.  Power,  7  Met.  596,  and 
Harris  v.  Stevens,  31  Vt.  79. 

It  is  argued  that  the  statute  gave  to  the  defendant  the  same  right  to 
enter  upon  and  use  the  buildings  and  platforms  of  the  plaintiff,  which 
the  plaintiff  gave  to  Porter  &  Sons.  The  plaintiff  made  a  contract 
with  Porter  &  Sons  to  do  all  the  service  required  by  incoming  passen- 
gers, in  receiving  from  the  plaintiff,  and  delivering  in  the  town,  bag- 
gage and  merchandise  brought  by  them;  and  prohibited  the  defendant 
and  all  other  owners  of  job-wagons  from  entering  the  station  for  the 
purpose  of  soliciting  from  passengers  the  carriage  of  their  baggage 
and  merchandise,  but  allowed  them  to  enter  for  the  purpose  of  deliv- 
ering baggage  or  merchandise,  or  of  receiving  any  for  which  they  had 
orders.  Section  188  of  the  Pub.  Stats,  chap.  112,  is  in  these  words: 
"Every  railroad  corporation  shall  give  to  all  persons  or  companies 
reasonable  and  equal  terms,  facilities,  and  accommodations  for  the 
transportation  of  themselves,  their  agents,  and  servants,  and  of  any 
merchandise  and  other  property,  upon  its  railroad,  and  for  the  use 
of  its  depot  and  other  buildings  and  grounds,  and,  at  any  point 
where  its  railroad  connects  with  another  railroad,  reasonable  and 
equal  terms  and  facilities  of  interchange."  A  penalty  is  prescribed 
in  §  191  for  violations  of  the  statute.  The  statute,  in  providing 
that  a  railroad  corporation  shall  give  to  all  persons  equal  facilities 
for  the  use  of  its  depot,  obviously  means  a  use  of  right.  It  does 
not  intend  to  prescribe  who  shall  have  the  use  of  the  depot,  but 
to  provide  that  all  who  have  the  right  to  use  it  shall  be  furnished 
by  the  railroad  company  with  equal  conveniences.  The  statute 
applies  only  to  relations  between  railroads  as  common  carriers, 
and  their  patrons.  It  does  not  enact  that  a  license  given  by  a 
railroad  company  to  a  stranger  shall  be  a  license  to  all  the  world. 
If  a  railroad  company  allows  a  person  to  sell  refreshments  or  news- 
papers in  its  depots,  or  to  cultivate  flowers  on  its  station-grounds,  the 
statute  does  not  extend  the  same  right  to  all  persons.  If  a  railroad 
company,  for  the  convenience  of  its  passengers,  allows  a  baggage 
expressman  to  travel  in  its  cars  to  solicit  the  carriage  of  the  baggage 
of  passengers,  or  to  keep  a  stand  in  its  depot  for  receiving  orders 
from  passengers,  the  statute  does  not  require  it  to  furnish  equal 
facilities  and  conveniences  to  all  persons.  The  fact  that  the  defend- 
ant, as  the  owner  of  a  job-wagon,  is  a  common  carrier,  gives  bin" 
no  special  right  under  the  statute;  it  only  shows  that  it  is  possible 
for  him  to  perform  for  passengers  the  service  which  he  wishes  ta 
solicit  of  them. 


172  OLD   COLONY   RAILROAD   V.   TRIPP. 

The  English  Railway  &  Canal  Traffic  Act,  17  &  18  Vict.  chap.  31, 
requires  every  railway  and  canal  company  to  afford  all  reasonable 
facilities  for  traffic,  and  provides  that  "no  such  company  shall  make 
or  give  any  undue  or  unreasonable  preference  or  advantage  to  or  in 
favor  of  any  particular  person  or  company,  or  any  particular  descrip- 
tion of  traffic,  in  any  respect  whatsoever."  Marriott  v.  London  &  S. 
W.  R.  Co.  1  C.  B.  N.  S.  499,  was  under  this  statute.  The  complaint 
was  that  the  omnibus  of  Marriott,  in  which  he  brought  passengers  to 
the  railroad,  was  excluded  by  the  railway  company  from  its  station 
grounds,  when  other  omnibuses,  which  brought  passengers,  were 
admitted.  An  injunction  was  ordered.  Beadell  v.  Eastern  Counties 
R.  Co.  2  C.  B.  N.  S.  509,  was  a  complaint,  under  the  statute,  that 
the  railway  company  refused  to  allow  the  complainant  to  ply  for 
passengers  at  its  station,  it  having  granted  the  exclusive  right  of 
taking  up  passengers  within  the  station,  to  one  Clark.  The  respond- 
ent allowed  the  complainant's  cabs  to  enter  the  station  for  the  purpose 
of  putting  down  passengers,  and  then  required  him  to  leave  the  yard. 
An  injunction  was  refused.  One  ground  on  which  the  case  was  dis- 
tinguished from  Marriott's  was  that  the  complainant  was  allowed  to 
enter  the  yard  to  set  down  passengers,  and  was  only  prohibited  from 
remaining  to  ply  for  passengers.  See  also  Painter  v.  London,  B.  & 
S.  C.  R.  Co.  2  C.  B.  N.  S.  702;  Barker  v.  Midland  R.  Co.  18  C.  B. 
46.  Besides  Marriott's  Case,  sicpra,  Palmer  v.  London,  B.  &  S.  C. 
R.  Co.  L.  R.  6  C.  P.  194,  and  Parkinson  v.  Great  Western  R.  Co. 
L.  R.  6  C.  P.  554,  are  cases  in  which  injunctions  were  granted  under 
the  statute:  in  the  former  case,  for  refusing  to  admit  vans  containing 
goods  to  the  station-yard  for  delivery  to  the  railway  company  for 
transportation  by  it;  in  the  latter  case,  for  refusing  to  deliver  at 
the  station,  to  a  carrier  authorized  to  receive  them,  goods  which  had 
been  transported  on  the  railroad. 

We  have  not  been  referred  to  any  decision  or  dictum,  in  England 
or  in  this  country,  that  a  common  carrier  of  passengers  and  their 
baggage  to  and  from  a  railroad  station  has  any  right,  without  the 
consent  of  the  railroad  company,  to  use  the  grounds,  buildings,  and 
platforms  of  the  station  for  the  purpose  of  soliciting  the  patronage 
of  passengers;  or  that  a  regulation  of  the  company  which  allows  such 
use  by  particular  persons,  and  denies  it  to  others,  violates  any  right 
of  the  latter.  Cases  at  common  law  or  under  statutes  to  determine 
whether  railroad  companies  in  particular  instances  gave  equal  terms 
and  facilities  to  different  parties  to  whom  they  furnished  transporta- 
tion, and  with  whom  they  dealt  as  common  carriers,  have  no  bearing 
on  the  case  at  bar.  The  defendant,  in  his  business  of  solicitor  of  the 
patronage  of  passengers,  held  no  relations  with  the  plaintiff  as  a  com- 
mon carrier,  and  had  no  right  to  use  its  station-grounds  and  buildings. 

A  majority  of  the  court  are  of  the  opinion  that  there  should  be  — 

Judgment  on  the  verdict ' 

1  Ace.  Brown  o.  N.  Y  C.  &  H.  R.  R.  R.,  27  N.  Y.  Sup.  69.  —Ed. 


KATES   V.   ATLANTA   BAGGAGE   AND   CAB  CO.  173 


KATES  V.  ATLANTA  BAGGAGE  AND    CAB  CO. 
Supreme  Court  of  Georgia,  1899. 

[107  Ga.  636.1] 

Little,  J.  .  .  .  The  evidence  was  in  direct  conflict  on  many  points. 
As  to  the  truth  of  the  allegations  about  which  the  evidence  is  con- 
flicting, it  is,  so  far  as  we  are  concerned,  settled  by  the  determination 
of  the  judge,  and  the  right  of  the  petitioner  to  have  the  judgment  re- 
fusing the  injunction  reversed  must  depend  on  the  application  of  legal 
principles  to  such  of  the  allegations  as  are  not  contested  by  evidence, 
and  these  are :  First,  that  the  defendants  permit  the  cab  company  to 
enter  the  passenger-trains  before  reaching  the  city,  for  the  purpose  of 
soliciting  baggage,  and  refuse  the  same  privilege  to  the  petitioner. 
Second,  that  the  servants  of  the  cab  company  are  allowed  access  to 
the  passenger-station  for  the  purpose  of  soliciting  patronage  and  for 
more  conveniently  attending  to  its  business,  and  this  privilege  is  re- 
fused to  petitioner.  Third,  that  the  privilege  of  using  an  office  in  the 
baggage-room  of  the  defendants  for  the  transaction  of  its  business  is 
granted  to  the  cab  company  and  refused  to  Kates.  Fourth,  the  privi- 
lege of  checking  the  baggage  of  prospective  passengers  at  hotels  and 
residences  in  advance  of  delivery  of  the  baggage  at  the  passenger-sta- 
tion ;  each  of  which  privileges  is  refused  to  petitioner.  It  cannot 
successfully  be  maintained  that  the  grant  of  these  privileges  to  the  cab 
company  is  in  violation  of  law,  nor  do  the  concessions  of  themselves 
create  a  monopol}',  nor  are  they  in  any  sense  an  interference  with  the 
right  of  the  travelling  public.  On  the  contrary,  it  will  be  recognized 
that  the  exercise  of  the  facilities  named  tends  to  the  public  convenience 
and  the  prompt  and  safe  handling  of  the  baggage  of  the  passenger.  Un- 
der no  view  of  the  case  would  the  petitioner  be  entitled  to  the  aid  of  the 
courts  in  restricting  these  conveniences  and  lessening  the  facilities  for 
the  safe  and  convenient  handling  of  the  effects  of  a  passenger.  The 
law  would  hardly  undertake  to  declare  that  a  railroad  company  should 
not,  if  it  so  desired,  through  its  representative  deliver  to  one  at  his 
home  in  the  city  of  Atlanta  a  check  insuring  the  delivery  of  his  trunk 
in  the  city  of  New  York  for  which  he  was  bound,  and  subject  the  pas- 
senger to  the  inconvenience  of  personally  appearing  at  the  baggage- 
room,  pointing  out  his  trunk,  and  there  receiving  the  railroad  company's 
check.  We  know  of  no  obligation  which  requires  that  a  railroad  com- 
pany shall  furnish  such  a  facility,  but  certainly  there  can  be  no  reason  to 
forbid  its  doing  so,  if  it  will ;  and  likewise  the  privilege  afforded  to  an 
incoming  passenger  before  arrival  to  deliver  to  a  responsible  person 
the  check  for  his  baggage,  with  an  obligation  on  the  part  of  the  latter 
to  deliver  the  same  at  the  residence  or  hotel  of  the  passenger,  infringes 
nobody's  rights,  but  does  promote  the  convenience  of  the  travelling 
public ;  and  rather  than  forbid,  the  law's  administrators  will  encourage 

1  This  case  is  abridged.  —  Ed. 


174        KATES  V.   ATLANTA  BAGGAGE  AND  CAB  CO. 

such  a  facility.  It  is  not  the  right  of  the  plaintiff  in  error,  by  injunc- 
tion or  otherwise,  to  take  away  or  disturb  any  reasonable  means  tend- 
ing to  promote  the  convenience  and  comfort  of  the  pubUc.  The  merit 
of  his  complaint,  if  any  exists,  must  be  found  in  tiie  fact  of  the  refusal 
of  the  defendants  to  grant  to  him  the  opportunities  so  to  serve  the  pub- 
lic and  thereby  better  his  business.  "Whether  the  refusal  so  to  do  is 
proper  or  unlawful  does  not  depend  upon  the  favor  or  inclination  of 
tlie  railroad  company,  but  upon  the  plaintiff's  right.  If  it  should 
depend  upon  favor,  then  the  plaintiff  in  error  has  no  cause  of  com- 
plaint, because  favor  is  essentially  free  and  voluntary,  and  may  not  be 
demanded  ;  and  it  is  in  this  view  that  we  come  to  measure  by  the  legal 
standard  what  are  the  rights  of  the  petitioner  under  the  allegations  he 
makes,  as  against  the  rights  of  the  defendants  to  control  propert}'  to 
which  they  have  title  and  consequently  the  right  of  use,  and  the  plain- 
tiff in  error,  to  succeed,  must  establish  the  proposition  that  the  de- 
fendants as  common  carriers  are  in  law  bound  to  afford  to  him  the 
Bame  conveniences  and  facilities  for  carrying  on  his  business  which 
they  afford  to  others  engaged  in  the  same  calling. 

It  is  claimed  that  the  grant  of  the  enumerated  privileges  to  the  cab 
company,  and  the  refusal  of  them  to  petitioner,  is  the  exercise  of  an 
undue  preference  on  the  part  of  the  carrier  against  the  business  of 
petitioner,  and  that  such  grant  and  refusal  establishes  a  monopoly 
which  is  forbidden  by  law.  In  entering  into  the  consideration  of  these 
important  questions,  we  find  that  the  field  of  inquiry  has  been  fre- 
quently traversed,  with  the  result  of  adjudicated  cases  not  entirel}*  in 
harmon}'.  In  some  of  .these,  the  decisions  are  based  on  the  common 
law ;  in  very  many  more,  on  the  terms  of  various  statutes ;  and  it  may 
be  well  to  inquire  whether  our  own  organic  or  statute  law  deals  par- 
ticularly with  such  questions.  It  is  undeniably  true  that  the  whole 
spirit  of  our  constitution  and  laws  is  directed  against  any  restriction 
of  competition.  Constitution  of  Ga.,  art.  4,  section  2,  par.  4.  Sec- 
tion 2,214  of  the  Civil  Code  declares  against  discrimination  in  rates  of 
freight  and  in  the  furnishing  of  facilities  for  interchange  of  freights, 
&c.,  as  do  also  sections  2,188,  2,307,  2,268,  and  2,274  of  the  Civil 
Code,  in  a  greater  or  less  degree.  While  it  is  perhaps  true  that  there 
are  no  express  rules  of  any  of  our  statutes  which  enact  penalties  for 
unjust  discrimination  exercised  b}'  carriers  to  the  detriment  of  the  busi- 
ness of  another,  j'et  the  scope  and  intent  of  the  provisions' to  which 
we  have  referred  are  broad  enough  to  afford  a  remedy.  But  in  the  ab- 
sence of  any  statutory  declaration,  we  are  remitted  to  the  principles  of 
the  common  law  to  determine  whether  the  refusal  to  grant  the  plain- 
tiff in  error  the  exercise  of  the  facilities  afforded  to  another  in  the 
same  business  is  an  unjust  discrimination,  or  an  unequal  and  illegal 
preference.  The  defendant  railroad  companies  are  common  carriers 
and  are  under  obligation  to  serve  the  public  equally  and  justl}'.  Hav- 
ing accepted  their  riglit  of  existence  from  the  public,  they  owe  a  duty 
to  the  public,  and  their  conduct  must  be  equal  and  just  to  all.     The 


KATES   V.   ATLANTA    BAGGAGE   AND   CAB   CO.  175 

very  definition  of  a  common  carrier  excludes  the  right  to  grant  mo- 
nopolies or  to  give  special  or  unequal  preferences.  It  implies  indiffer- 
ence as  to  whom  he  ma^-  serve  and  an  equal  readiness  to  serve  all  who 
may  apply  in  the  order  of  their  application.  57  Me.  188.  From  these 
characteristics,  v/hich  apply  to  all  common  carriers,  it  is  a  sound  legal 
principle  that  a  railway  company  as  a  common  carrier  cannot  grant  to 
any  person  or  persons,  or  to  any  part  of  the  public,  rights  or  privileges 
which  it  refuses  to  others,  but  must  treat  all  alike.  Receiving  and  dis- 
charging baggage  is  one  of  the  duties  of  a  public  passenger-carrier, 
and  the  obligations  before  enumerated  apply  in  full  force  in  the  re- 
ceipt and  discharge  of  baggage  at  the  union  passenger-station  in  the 
city  of  Atlanta ;  and  if  it  should  be  found  to  be  true  that  the  defend- 
ant railroad  companies,  either  in  the  receipt  or  delivery  of  baggage  by 
their  baggage- master  or  other  agents,  discriminated  against  any  pas- 
senger or  the  agent  of  an}'  passenger  in  the  time  or  manner  in  which 
baggage  was  received  or  discharged  either  through  a  system  of  claim- 
checks  or  otherwise,  such  discrimination  would  be  a  palpable  violation 
of  their  public  duties,  for  which  the  law  affords  ample  reraed}^  by 
injunction  and  full  redress  in  the  nature  of  damages.  So  of  injury  to 
or  undue  interference  with  the  baggage  presented.  Neither  should 
discourteous  language  or  personal  ill-treatment  b}'  the  agents  of  the 
carrier  in  the  performance  of  his  business  be  tolerated.  As  these 
charges  were  denied,  and  the  judgment  sought  to  be  reversed  necessa- 
rily included  a  finding  against  their  truth,  nothing  more  than  a  recog- 
nition of  the  principle  need  now  be  adverted  to ;  but,  inseparably 
connected  with  the  transaction  of  its  public  business,  a  common  car- 
rier is  invested  with  the  ownership  of  property,  for  the  safe  and  effi- 
cient exercise  of  the  franchises  which  the  public  has  for  its  own  benefit 
given  to  it.  Railroad  companies  have  rights  of  way,  stations,  depots, 
cars,  engines,  &c.,  as  their  equipment  to  serve  the  public.  In  the  use 
of  such  property  as  public  carriers,  no  one  of  the  public  ought  to  be 
favored  more  than  another,  nor  is  it  lawful  to  impose  an}'  restriction, 
or  make  any  discrimination  in  such  use,  against  any  one,  which  does 
not  apply  to  all ;  but  this  rule  of  impartiality  applies  to  railroad  com- 
panies in  their  public  capacity,  and  it  by  no  means  follows  that  such 
reasonable  rules  and  regulations  which  a  carrier  may  make  for  the  pro- 
tection of  its  property,  for  the  safety  and  convenience  of  its  pas- 
sengers or  freights,  are  subject  to  the  same  unqualified  condition. 

This  court  in  the  case  of  Fluker  ik  Georgia  R.  R.  Co.,  81  Ga.  461, 
recognized  tlie  distinction  which  exists  between  the  duty  which  a  rail- 
road company  owes  to  the  public  and  the  private  right  to  regulate  and 
control  its  property.  In  that  case  the  railroad  company  had  leased  to 
one  individual  the  right  of  serving  lunches  to  passengers  on  its  trains 
at  a  given  place.  Another  claimed  the  right  to  exercise  the  same  priv- 
ilege, which  the  company  denied,  and  the  claimant  was  expelled  as 
an  intruder.  As  in  our  opinion  this  case  goes  very  far  in  determin- 
ing the  legal  questions  now  presented,  we  freely  refer  to  the  opinion  ren- 
dered by  Chief  Justice  Bleckley  as  sound  in  principle,  and  authority 


176         KATES  V.  ATLANTA  BAGGAGE  AND  CAB  CO. 

binding  upon  us.  Tlirough  him  the  court  says :  "  It  is  contended  that 
the  company  has  no  such  exclusive  dominion  over  the  tracks  and  spaces 
embraced  in  its  right  of  way  as  to  entitle  it  to  exclude  therefrom  any 
person  entering  thereon  in  an  orderly  manner  and  upon  lawful  business ; 
and  especially  that  it  cannot  discriminate  against  one  person  and  in 
favor  of  another.  We  have  discovered  no  authority  for  this  position, 
either  in  its  more  limited  or  more  extended  form.  On  the  contrary,  it 
would  seem  that  the  very  nature  of  property  involves  a  right  to  exclusive 
dominion  over  it  in  the  owner.  We  cannot  believe  that  there  is  a  sort 
of  right  of  common  lodged  in  the  public  at  large  to  enter  upon  lands 
on  which  railroads  are  located,  and  over  which  they  have  secured  the 
right  of  way.  Such  lands  the  railroad  companies  ma}'  inclose  by 
fences  if  they  choose  to  do  so,  and  exclude  any  and  all  persons  whom- 
soever. Their  dominion  over  the  same  is  no  less  complete  or  exclu- 
sive than  that  which  ever}'  owner  has  over  his  property.  If  they  do 
not  choose  to  erect  fences  and  make  enclosures,  they  ma}',  by  mere 
orders,  keep  off  intruders,  and  they  may  treat  as  intruders  all  who 
come  to  transact  their  own  business  with  passengers  or  with  persons 
other  than  the  companies  themselves.  .  .  .  The  business  of  selling 
lunches  to  passengers,  or  of  soliciting  from  them  orders  for  the  same, 
is  not  one  which  every  citizen  has  the  right  to  engage  in  upon  the 
tracks  and  premises  of  a  railway  company,  and  consequently  those 
who  do  engage  in  it  and  carry  it  on  must  depend  upon  the  company 
for  the  privilege."  Citing  67  N.  Y.  301 ;  31  Ark.  50  ;  2  Gray,  577 ; 
88  Penn.  St.  424;  128  Mass.  5  ;  29  Ohio  St.  364.  This  is  the  exposi- 
tion of  the  law  in  force  in  this  State,  from  which,  as  we  believe,  there 
has  been  no  departure.  If  the  principles  declared  are  applicable  to 
the  facts  of  the  present  record,  it  would  seem  that  the  contention  of 
the  plaintiff  that  he  should  be  allowed,  as  a  matter  of  right,  access 
to  the  depot-grounds  and  trains  of  the  defendant  railroad  companies  to 
ply  his  business,  must  fail.  The  case  clearly  rules  the  principle  that  a 
railroad  company  has  the  right  to  exclude  from  its  premises  persons 
going  thereon  for  the  purpose  of  transacting  private  business ;  and  a 
second  proposition  is  equally  as  clearly  stated  to  be,  that  the  privilege 
of  doing  so  may  be  granted  to  one  and  refused  to  another  without 
violating  any  principle  of  law  which  governs  the  conduct  of  carriers 
and  regulates  their  duty  to  the  public. 


citizens'   bank   v.   NANTUCKET  STEAMBOAT   CO.  177 


CITIZENS'  BANK  u.  NANTUCKET  STEAMBOAT  CO. 

Circuit  Court  op  the  United  States,  1811. 

[2  Story,  16.2] 

Stort,  J.  This  cause  has  come  before  the  court  under  circumstances, 
involving  some  points  of  the  first  impression  here,  if  not  of  entire  nov- 
elt}^ ;  and  it  has  been  elaborately  argued  by  the  counsel  on  each  side  on 
all  the  matters  of  law,  as  well  as  of  fact,  involved  in  the  controversy. 
I  have  given  them  all  the  attention,  both  at  the  argument  and  since, 
which  their  importance  has  demanded,  and  shall  now  proceed  to  deliver 
my  own  judgment. 

The  suit  is  in  substance  brought  to  recover  from  the  Steamboat  Com- 
pany a  sum  of  money,  in  bank  bills  and  accounts,  belonging  to  the 
Citizens'  Bank,  which  was  intrusted  by  the  cashier  of  the  bank  to  the 
master  of  the  steamboat,  to  be  carried  in  the  steamboat  from  the  Island 
of  Nantucket  to  the  port  of  New  Bedford,  across  the  intermediate  sea, 
which  mone}'  has  been  lost,  and  never  duly  delivered  b}'  the  master. 
The  place  where,  and  the  circumstances  under  which  it  was  lost,  do  not 
appear  distinctly  in  the  evidence ;  and  are  no  otherwise  ascertained, 
than  by  the  statement  of  the  master,  who  has  alleged  that  the  money 
was  lost  by  him  after  his  arrival  at  New  Bedford,  or  was  stolen  from 
him;  but  exactly  how  and  at  what  time  he  does  not  know.  The  libel 
is  not  iti  rem,  but  i7i  personam,  against  the  Steamboat  Company  alone j 
and  no  question  is  made  (and  in  m}'  judgment  there  is  no  just  ground 
for  anj'  such  question),  that  the  cause  is  a  case  of  admiralty  and  mari- 
time jurisdiction  in  the  sense  of  the  Constitution  of  the  United  States, 
of  which  the  District  Court  had  full  jurisdiction ;  and,  therefore,  it  is 
properly  to  be  entertained  b}'  this  court  upon  the  appeal. 

There  are  some  preliminary  considerations  suggested  at  the  argu- 
ment, which  it  may  be  well  to  dispose  of,  before  we  consider  those, 
which  constitute  the  main  points  of  the  controversy.  In  the  first  place, 
there  is  no  manner  of  doubt,  that  steamboats,  like  other  vessels,  may 
be  emplo3'ed  as  common  carriers,  and  when  so  emplojed  their  owners 
are  liable  for  all  losses  and  damages  to  goods  and  other  property  in- 

1  Compare:    East  India  Co.  v.  Fallen,  2  Strange,  690;   Brind  v.  Dale,  8  C.  &  P 
207;  Liver  Alkali  Co.  v.  Johnson,  L.  R.  9  Ex.  338.  — Ed. 
'  This  case  is  abridged.  —  Ed. 


178  citizens'  bank  v.  nantucket  steamboat  CO. 

trusted  to  them  as  comuiuu  carriers  to  the  same  extent  and  in  the  same 
manner,  as  any  other  common  carriers  b}-  sea.  But  whether  they  are 
so,  depends  entirely  upon  the  nature  and  extent  of  the  employment  of 
the  steamboat,  either  express  or  implied,  which  is  authorized  by  the 
owners.  A  steamboat  ma}"  be  employed,  although  I  presume  it  is 
rarel}'  the  case,  solely  in  the  transportation  of  passengers ;  and  then 
the  liabilit}-  is  incurred  only  to  the  extent  of  the  common  rights,  duties, 
and  obligations  of  carrier  vessels  of  passengers  by  sea,  and  carrier 
vehicles  of  passengers  on  land ;  or  they  may  be  employed  solely  in  the 
transportation  of  goods  and  merchandise,  and  then,  like  other  carriers 
of  the  like  character  at  sea  and  on  land,  they  are  bound  to  the  common 
duties,  obligations,  and  liabilities  of  common  carriers.  Or  the  employ- 
ment ma}'  be  limited  to  the  mere  carriage  of  particular  kinds  of  prop- 
erty and  goods  ;  and  when  this  is  so,  and  the  fact  is  known  and  avowed, 
the  owners  will  not  be  liable  as  common  carriers  for  an}*  other  goods  or 
property  intrusted  to  their  agents  without  their  consent.  The  trans- 
portation of  passengers  or  of  merchandise,  or  of  both,  does  not  neces- 
Barily  impl}',  that  the  owners  hold  themselves  out  as  common  carriers 
of  mone}'  or  bank  bills.  It  has  never  been  imagined,  I  presume,  that 
the  owners  of  a  ferry  boat,  whose  ordinnr}'  employment  is  merel}'  to 
carry  passengers  and  their  luggage,  would  be  liable  for  the  loss  of 
mone}"  intrusted  for  carriage  to  the  boatmen  or  other  servants  of  the 
owners,  where  the  latter  had  no  knowledge  thereof,  and  received  no 
compensation  therefor.  In  like  manner  the  owners  of  stage-coaches, 
whose  ordinary  emi)loyment  is  limited  to  the  transportation  of  pas- 
sengers and  their  luggage,  would  not  be  liable  for  parcels  of  goods  or 
merchandise  intrusted  to  the  drivers  employed  by  them,  to  be  carried 
from  one  place  to  another  on  their  route,  where  the  owners  receive  no 
compensation  therefor,  and  did  not  hold  themselves  out  as  common 
carriers  of  such  parcels.  A  fortiori,  the}'  would  not  be  liable  for  the' 
carriage  of  parcels  of  mone}',  or  bank  bills,  under  the  like  circumstances. 
So,  if  money  should  be  intrusted  to  a  common  wagoner  not  authorized 
to  receive  it  by  the  ordinary  business  of  his  employers  and  owners,  at 
their  risk,  I  apprehend,  that  the}-  would  not  be  liable  for  the  loss 
thereof  as  common  carriers,  an}'  more  than  they  would  be  for  an  injury 
done  by  his  negligence,  to  a  passenger,  wiiom  he  had  casually  taken  up 
on  the  road.  In  all  these  cases,  the  nature  and  extent  of  the  employ- 
ment or  business,  which  is  authorized  by  the  owners  on  their  own 
account  and  at  their  own  risk,  an<l  which  either  expressly  or  impliedly 
they  hold  themselves  out  as  undertaking,  furnishes  the  true  limits  of 
their  rights,  obligations,  duties,  and  liabilities.  The  question,  therefore, 
in  all  cases  of  this  sort  is,  what  are  the  true  nature  and  extent  of  the 
employment  and  business,  in  which  the  owners  hold  themselves  out  to 
the  public  as  engaged.  They  may  undertake  to  be  common  carriers  of 
passengers,  and  of  goods  and  merchandise,  and  of  money ;  or,  they 
may  limit  their  employment  and  business  to  the  carriage  of  any  one  or 
more  of  these  particular  matters.     Our  steamboats  are  ordinarily  em- 


citizens'   bank   v.    NANTUCKET   STEAMBOAT   CO.  179 

ployed,  I  believe,  in  the  carriage,  not  merely  of  passengers,  but  of  goods 
and  merchandise,  including  specie,  on  freight ;  and  in  such  cases,  the 
owners  will  incur  the  liabilities  of  common  carriers  as  to  all  such  mat- 
ters within  the  scope  of  their  employment  and  business.  But  in  respect 
to  the  carriage  of  bank  bills,  perhaps  very  different  usages  do,  or  at 
least  may,  prevail  in  different  routes,  and  different  ports.  But,  at  all 
events,  1  do  not  see,  how  the  court  can  judicially  sa^-,  that  steamboat 
owners  are  either  necessarily  or  ordinarily  to  be  deemed,  in  all  cases, 
common  carriers,  not  only  of  passengers,  but  of  goods  and  merchandise 
and  money  on  the  usual  voyages  and  routes  of  their  steamboats ;  but 
the  nature  and  extent  of  the  employment  and  business  thereof  must  be 
established  as  a  matter  of  fact  by  suitable  proofs  in  each  particular 
case.  Such  proofs  have,  therefore,  been  very  properly  resorted  to  upon 
the  present  occasion. 

In  the  next  place,  I  take  it  to  be  exceedingly'  clear,  that  no  person  is 
a  common  carrier  in  the  sense  of  the  law,  who  is  not  a  carrier  for  hire ; 
that  is,  who  does  not  receive,  or  is  not  entitled  to  receive,  any  recom- 
pense for  his  services.  The  known  definition  of  a  common  carrier,  in 
all  our  books,  fully  establishes  this  result.  If  no  hire  or  recompense  ia 
pa3'able  ex  debito  justiticB,  but  something  is  bestowed  as  a  mere  gra- 
tuity or  voluntary  gift,  then,  although  the  party  maj-  transport  either 
persons  or  propert}",  he  is  not  in  the  sense  of  the  law  a  common  car- 
rier; but  he  is  a  mere  mandatary,  or  gratuitous  bailee;  and  of  course 
his  rights,  duties,  and  liabilities  are  of  a  very  different  nature  and  char- 
acter from  those  of  a  common  carrier.  In  the  present  case,  therefore, 
it  is  a  very  important  inquiry,  whether  in  point  of  fact  the  respondents 
were  carriers  of  money  and  bank  notes  and  checks  for  hire  or  recom- 
pense, or  not.  I  agree,  that  it  is  not  necessary,  that  the  compensation 
should  be  a  fixed  sum,  or  known  as  freight ;  for  it  will  be  sufficient  if 
a  hire  or  recompense  is  to  be  paid  for  the  service,  in  the  nature  of  a 
quantum  meruit,  to  or  for  the  benefit  of  the  company.  And  I  farther 
agree,  that  it  is  by  no  means  necessary,  that  if  a  hire  or  freight  is  to  be 
paid,  the  goods  or  merchandise  or  money  or  other  property  should  be 
entered  upon  any  freight  list,  or  the  contract  be  verified  bj-  any  writ- 
ten memorandum.  But  the  existence  or  non-existence  of  such  circum- 
stances may  nevertheless  be  very  important  ingredients  in  ascertaining 
what  tlie  true  understanding  of  the  parties  is,  as  to  the  chai'acter  of 
the  bailment. 

In  the  next  place,  if  it  should  turn  out,  that  the  Steamboat  Company 
are  not  to  be  deemed  common  carriers  of  money  and  bank  bills ;  still, 
if  the  master  was  authorized  to  receive  money  and  bank  bills  as  their 
agent,  to  be  transported  from  one  port  of  the  route  of  the  steamboat 
to  anotlier  at  their  risk,  as  gratuitous  bailees,  or  mandataries,  and  he 
has  been  guilty  of  gross  negligence  in  the  performance  of  his  duty, 
whereby  the  money  or  bank  bills  have  been  lost,  the  companj-  are  un- 
doubtedly liable  therefor,  unless  such  transportation  be  beyond  the 
scope  of  their  charter;  upon  the  plain  ground,  that  they  are  responsible 


180  BFSSEY  V.   MISSISSIPPI   VALLEY  TRANSPORTATION   CO. 

for  the  gross  negligence  of  their  agents  within  the  scope  of  their  em- 
plo3ment. 

[Having  stated  these  preliminary  doctrines,  which  seem  necessary 
to  a  just  understanding  of  the  case,  we  may  now  proceed  to  a  direct 
consideration  of  the  merits  of  the  present  controversy.  And  in  my 
judgment,  although  there  are  several  principles  of  law  involved  in 
it,  yet  it  mainly  turns  upon  a  matter  of  fact,  namely,  the  Steamboat 
Company  were  not,  nor  held  themselves  out  to  the  public  to  be,  common 
carriers  cf  money  and  bank  bills,  as  well  as  of  passengers  and  goods 
and  merchandises,  in  the  strict  sense  of  the  latter  terms ;  the  em- 
ployment of  the  steamboat  was,  so  far  as  the  company  are  concerned, 
limited  to  the  mere  transportation  of  passengers  and  goods  and  mer- 
chandises on  freight  or  for  hire ;  and  money  and  bank  bills,  although 
known  to  the  company  to  be  carried  by  the  master,  were  treated  by 
them,  as  a  mere  personal  trust  in  the  master  by  the  owners  of  the 
money  and  bank  bills,  as  their  private  agent,  and  for  which  the  com- 
pan}'  never  held  themselves  out  to  the  public  as  responsible,  or  as  being 
within  the  scope  of  their  employment  and  business  as  carriers.  .   .  . 

Judgment  /or  defendant}'] 


BUSSEY   &   CO.   V.   MISSISSIPPI  VALLEY 
TRANSPORTATION   CO. 

Supreme  Court  of  Louisiana,  1872. 

[24  La.  Ann.  165.] 

Appeal  from  the  Fourth  District  Court,  parish  of  Orleans.  Theard,  J. 

Howe,  J.  The  plaintiffs,  a  commercial  firm,  sued  the  defendants,  a 
corporation,  whose  business  is  to  transport  merchandise  in  their  own 
model  barges,  and  to  tow  the  barges  of  other  parties  for  hire  between 
St.  Louis  and  New  Orleans. 

The  bill  of  lading,  given  b}'  defendants  to  plaintiffs,  recites  the  receipt 
from  plaintiffs  of  one  barge  loaded  with  hay  and  corn,  "in  apparent 
good  order  in  tow  of  the  good  steamboat  '  Bee*  and  barges,"  "to  be  de- 
livered without  delay  in  like  good  order  (the  dangers  of  navigation,  fire, 
explosion,  and  collision  excepted)  to  Bussey  &  Co.,  at  New  Orleans, 
Louisiana,  on  levee  or  wharf  boat,  he  or  they  paying  freight  at  the 
rate  annexed,  or  $700  for  barge,  and  charges  $267.50."  .  .  .  "It  is 
agreed  with  shippers,"  the  bill  continues,  "that  the  'Bee'  and  barges 
are  not  accountable  for  sinking  or  damage  to  barge,  except  from  gross 
carelessness." 

It  was  alleged  by  plaintifts  that  defendants  had  neglected  to  deliver 
the  barge  and  her  valuable  cargo  according  to  their  contract.  Tke  de- 
fendants answered  by  a  general  denial,  and  by  a  recital  of  what  they 
claimed  to  be  the  circumstances  of  the  loss  of  the  barge  and  cargo,  in 


BUSSEY  V.  MISSISSIPPI  VALLEY  TRANSPORTATION  CO.  181 

■which  they  contended  thej'  were  without  blame  ;  and  that  loss  did  not 
result  from  gross  carelessness  on  their  part,  and  they  were  not  liable 
under  the  bill  of  lading.  Other  defences  were  raised  by  the  answer 
which  have  been  abandoned. 

The  court  a  qua  gave  judgment  for  plaintiffs  for  the  amount  claimed 
as  the  value  of  the  barge  and  cargo,  $15,272.60,  with  interest  from 
judicial  demand,  and  defendants  appealed. 

The  appellants  contend,  as  stated  in  their  printed  argument, 

^'' First  —  That  they  are  not  common  carriers,  or  rather  that  their 
undertaking  in  this,  or  like  cases,  is  not  that  of  a  common  carrier. 

"  Second — That  they  are  liable,  if  liable  at  all,  only  in  case  of  grosa 
carelessness. 

"  Third — That  the  restriction  of  liability  contained  in  the  agree- 
ment to  tow  the  barge  in  question  exonerates  them,  except  in  case  of 
gross  carelessness  —  as  the  appellants  were  bound  to  use  but  ordinary 
prudence,  even  if  they  were  common  carriers. 

"  Fourth  —  That  the  judgment  rendered  is  for  a  larger  amount  than 
the  testimony  will  authorize." 

The  question  whether  a  towboat  under  the  circumstances  of  this  par- 
ticular case  is  a  common  carrier  has  been  long  settled  in  the  affirmative 
in  Louisiana ;  and  the  reasoning  by  which  Judge  Matthews  supported 
this  conclusion  in  the  leading  case  of  Smith  v.  Pierce,  1  La.  354,  is 
worth}'  of  the  sagacity  for  which  that  jurist  was  pre-eminent.  The  same 
opinion  was  clearl}'  intimated  by  the  Supreme  Court  of  Massachusetts 
in  the  case  of  Sproul  v.  Hemraingwaj",  14  Pick.  1,  in  which  Chief 
Justice  Shaw  was  the  organ  of  the  court. 

In  the  case  also  of  Alexander  v.  Greene,  7  Hill,  533,  the  Court  of 
Errors  of  New  York  seem  to  have  been  of  the  same  opinion.  Four  of 
the  senators  in  giving  their  reasons  distinctly  state  their  belief  that 
the  towboat  in  that  case  was  a  common  carrier,  and  Judge  Matthews' 
decision  is  referred  to  in  terras  of  commendation  as  a  precedent.  It  is 
true  tliat  Mr.  Justice  Bronson,  whose  opinion  was  thus  reversed,  in  a 
subsequent  case  declares  (2  Corns.  208)  that  nobody  could  tell  what  the 
Court  of  Errors  did  decide  in  Alexander  v.  Greene,  but  the  facts  remain 
as  above  stated,  and  the  effect  of  the  case  cannot  but  be  to  fortify  the 
authority  of  the  decision  in  1  La. 

In  addition  to  these  authorities  we  have  the  weighty  opinion  of  Mr. 
Kent  who  includes  "  steam  towboats  "  in  his  list  of  common  carriers,  2 
Kent,  599,  and  of  Judge  Kane  in  13  L.  R.  399.  On  the  other  hand, 
Judge  Storj'  seems  to  be  of  a  different  opinion  (Bailments,  §  496),  and 
Mr.  Justice  Grier  differed  from  Judge  Kane. 

So,  too,  the  Supreme  Court  of  New  York,  in  Caton  v.  Rumney,  13 
Wend.  387,  and  Alexander  v.  Greene,  3  Hill,  9  ;  the  Court  of  Appeals 
of  tlie  same  State  in  Well  v.  Steam  Nav.  Co.,  2  Coms.  207 ;  the  Supreme 
Court  of  Pennsylvania  in  Leonard  v.  Hendrickson,  18  State,  40,  and 
Brown  v.  Clegg,  63  State,  51  ;  and  the  Supreme  Court  of  Maryland  in 
Penn.  Co.  v.  Sandridge,  8  Gill  &  J.  248,  decided  that  tugboats  in  these 


182  BUSSEY  V.   MISSISSIPPI   VALLEY  TRANSPORTATION   CO. 

particular  cases  were  not  con^mon  carriers.  We  are  informed  that  the 
same  decision  was  made  in  the  case  of  the  "  Neaffle,"  lately  decided  in 
the  United  States  Circuit  Court  in  New  Orleans. 

Such  conflict  of  authority  might  be  very  distressing  to  the  student, 
but  for  the  fact  that  when  these  writers  and  cases  cited  by  them 
are  examined  the  discrepancy,  except  in  the  decision  in  63  Penn.,  is 
more  imaginary  than  real.  There  are  two  very  different  wa)'S  in  which 
a  Steam  towboat  may  be  employed,  and  it  is  likely  that  Mr.  Story  was 
contemplating  one  method  and  Mr.  Kent  the  other.  In  the  first  place 
it  may  be  employed  as  a  mere  means  of  locomotion  under  the  entire 
control  of  the  towed  vessel ;  or  the  owner  of  the  towed  vessel  and 
goods  therein  may  remain  in  possession  and  control  of  the  property 
thus  transported  to  the  exclusion  of  the  bailee ;  or  the  towing  may  be 
casual  merely,  and  not  as  a  regular  business  between  fixed  termini. 
Such  were  the  facts  in  some  form  as  stated  or  assumed  in  Caton  v. 
Eumney,  13  Wend.,  and  Alexander  v.  Greene,  3  Hill,  cited  by  Judge 
Story  in  the  case  of  the  "  Neaflfie,"  and  in  the  cases  above  quoted  from 
2  Coms.,  18  Penn.  St.,  and  8  Gill  &  J. ;  and  it  might  well  be  said  that 
under  such  circumstances  the  towboat  or  tug  is  not  a  common  carrier. 
But  a  second  and  quite  different  method  of  employing  a  towboat  is 
where  she  plies  regularl}*  between  fixed  termini,  towing  for  hire  and  for 
all  persons,  barges  laden  with  goods,  and  taking  into  her  full  possession 
and  control,  and  out  of  the  control  of  the  bailor  the  property  thus  trans- 
ported. Such  is  the  case  at  bar.  It  seems  to  satisfy-  every  requirement 
in  the  definition  of  a  common  carrier.  Story  on  Bail.  §  495.  And  it 
was  probably  to  a  towboat  employed  in  this  way  that  Mr.  Kent  referred 
in  the  passage  quoted  above ;  and  that  the  Supreme  Court  of  Massa- 
chusetts had  in  mind  in  the  14  Pick.;  and  see  also  Davis  v.  Housen,  6 
Rob.  259,  and  Clapp  v.  Stanton,  20  An.  495.  We  must  think  that  in 
all  reason  the  liability  of  the  defendants  under  such  circumstances 
should  be  precisely  the  same  as  if,  the  barge  being  much  smaller,  it 
had  been  carried,  cargo  and  all,  on  the  deck  of  their  tug. 

But  conceding  that  this  case  as  a  contract  of  affreightment  must  be 
determined  by  the  law  of  Missouri  (4  Martin,  584),  and  that  by  that 
law  the  defendants  are  not  common  carriers  as  to  the  plaintiffs,  we 
think  it  clear  from  the  evidence  of  the  defendants'  own  witnesses  that 
they  were  guilty  of  "gross  carelessness"  in  their  attempt  to  deliver 
the  plaintiffs'  barge  with  its  cargo  at  the  port  of  New  Orleans,  and 
that  by  this  gross  carelessness  she  was  sunk,  and,  with  her  cargo, 
destroyed. 

What  is  "gross  carelessness"?  In  an  employment  requiring  skill, 
it  is  the  failure  to  exercise  skill.  New  World  v.  King,  16  llow.  475. 
The  employment  of  the  defendants  certainly  required  skill.  A  lack  of 
that  dexterity  which  comes  from  long  experience  only,  might  be  swiftly 
fatal,  for  but  a  single  plank  intervenes  between  the  costly  cargo  and 
instant  destruction.  We  have  but  to  read  the  testimony  of  defend.ints* 
own  witnesses,  and  especially  Conley,  Turner,  Burdeau,  and  Sylvester, 


BUCKLAND  V.   ADAMS  EXPRESS  CO.  183 

to  see  that  the  attempt  to  land  the  barge  was  made  without  skill,  and 
that  it  might  easily  have  been  eflfected  with  entire  safety. 

We  are  of  opinion  that  the  judgment  was  correctly  rendered  in  favor 
of  plaintiffs,  but  that  the  amount  is  somewhat  excessive.  "We  find  the 
value  of  the  property  lost  at  this  port,  less  the  freight  and  charges,  and 
a  small  amount  realized  from  the  wreck,  to  be  $13,268.50. 

It  is  therefore  ordered  that  the  judgment  appealed  from  be  amended 
by  reducing  the  amount  thereof  to  the  sum  of  thirteen  tliousand  two 
hundred  and  sixty-eight  dollars  and  fifty  cents,  with  legal  interest  from 
judicial  demand  and  costs  of  the  lower  court,  and  that  as  thus  amended 
it  be  affirmed,  appellees  to  pay  costs  of  appeal.^ 


BUCKLAND   v.    ADAMS   EXPRESS   CO. 
Supreme  Court  op  Massachusetts,  1867. 

[97  Mass.  1242.] 

Contract  to  recover  the  value  of  a  case  of  pistols. 

BiGELOW,  C.  J.  We  are  unable  to  see  any  valid  reason  for  the  sug- 
gestion that  the  defendants  are  not  to  be  regarded  as  common  carriers. 
The  name  or  style  under  which  the}^  assume  to  carrj-  on  their  business 
is  wholly  immaterial.  The  real  nature  of  their  occupation  and  of  the 
legal  duties  and  obligations  which  it  imposes  on  them  is  to  be  ascer- 
tained from  a  consideration  of  the  kind  of  sei'vice  which  they  hold 
themselves  out  to  the  public  as  read}'  to  render  to  those  who  may  have 
occasion  to  employ  them.  Upon  this  point  there  is  no  room  for  doubt. 
They  exercise  the  employment  of  receiving,  carrying,  and  delivering 
goods,  wares,  and  merchandise  for  hire  on  behalf  of  all  persons  who 
may  see  fit  to  require  their  services.  In  this  capacity  they  take  proi> 
erty  from  the  custody  of  the  owner,  assume  entire  possession  and  con- 
trol of  it,  transport  it  from  place  to  place,  and  deliver  it  at  a  point  of 
destination  to  some  consignee  or  agent  there  authorized  to  receive  it. 
This  statement  embraces  all  the  elements  essential  to  constitute  the 
relation  of  common  carriers  on  the  part  of  the  defendants  towards  tlie 
persons  who  eraplo}'  them.  Dwight  v.  Brewster,  1  Pick.  50,  53  ;  Lowell 
Wire  Fence  Co.  v.  Sargent,  8  Allen,  189  ;  2  Redfield  on  Railways,  1-lG. 

But  it  is  urged  in  behalf  of  the  defendants  that  they  ought  not  to  be 
held  to  the  strict  liability  of  common  carriers,  for  the  reason  that  the 
contract  of  carriage  is  essentially  modified  by  the  peculiar  mode  in 
which  the  defendants  undertake  the  performance  of  the  service.  The 
main  ground  on  which  this  argument  rests  is,  that  persons  exercising 
the  emplo3'ment  of  express  carriers  or  messengers  over  railroads  and 
by  steamboats  cannot,  from  the  very  nature  of  the  case,  exercise  any 

1  Compare:  The  Neaffie,  1  Abb.  C.  C.  465 ;  White  v.  Winnisimmet  Co.,  7  Cnah. 
155 ;  White  v.  Maxj  Ann,  6  Cal.  462.  —  £i>. 


184  BUCKLAND  V.   ADAMS  EXPRESS  00. 

care  or  control  over  the  means  of  transportation  which  they  are  obliged 
to  adopt ;  that  the  carriages  and  boats  in  which  the  merchandise  in- 
trusted to  them  is  placed,  and  the  agents  or  servants  b}'  whom  they  are 
managed,  are  not  selected  b)'  them  nor  subject  to  their  direction  or 
supervision;  and  that  the  rules  of  the  common  law,  regulating  the 
duties  and  liabilities  of  carriers,  having  been  adapted  to  a  different 
mode  of  conducting  business  by  which  the  carrier  was  enabled  to  select 
his  own  servants  and  vehicles  and  to  exercise  a  personal  care  and  over- 
sight of  them,  are  wholly  inapplicable  to  a  contract  of  carriage  by 
which  it  is  understood  between  the  parties  that  the  service  is  to  be 
performed,  in  part  at  least,  by  means  of  agencies  over  which  the  car- 
rier can  exercise  no  management  or  control  whatever.  But  this  argu- 
ment, though  specious,  is  unsound.  Its  fallacy  consists  in  the  assumption 
that  at  common  law,  in  the  absence  of  any  express  stipulation,  the 
contract  with  an  owner  or  consignor  of  goods  delivered  to  a  carrier  for 
transportation  necessarily  implies  that  they  are  to  be  carried  by  the 
party  with  whom  the  contract  is  made,  or  by  servants  or  agents  under 
his  immediate  direction  and  control.  But  such  is  not  the  undertaking 
of  the  carrier.  The  essence  of  the  contract  is  that  the  goods  are  to  be 
carried  to  their  destination,  unless  the  fulfilment  of  this  undertaking  is 
prevented  by  the  act  of  God  or  the  public  enem}'.  This,  indeed,  is  the 
whole  contract,  whether  the  goods  are  carried  by  land  or  water,  by  the 
carrier  himself  or  by  agents  emplo3'ed  by  him.  The  contract  does  not 
imp]}'  a  personal  trust,  which  can  be  executed  only  b}'  the  contracting 
part}'  himself  or  under  his  supervision  by  agents  and  means  of  trans- 
portation directly  and  absolutely  within  his  control.  Long  before  the 
discovery  of  steam  power,  a  carrier  who  undertook  to  convey  merchan- 
dise from  one  point  to  another  was  authorized  to  perform  the  service 
through  agents  exercising  an  independent  employment,  which  they  car- 
ried on  by  the  use  of  their  own  vehicles  and  under  the  exclusive  care 
of  their  own  servants.  It  certainly  never  was  supposed  that  a  person 
who  agreed  to  carry  goods  from  one  place  to  another  by  means  of 
wagons  or  stages  could  escape  liability  for  the  safe  carriage  of  the  prop- 
erty over  any  part  of  the  designated  route  by  showing  that  a  loss  hap- 
pened at  a  time  when  the  goods  were  placed  by  him  in  vehicles  which 
he  did  not  own,  or  which  were  under  the  charge  of  agents  whom  he  did 
not  select  or  control.  The  truth  is  that  the  particular  mode  or  agency 
by  which  the  service  is  to  be  performed  does  not  enter  into  the  contract 
of  carriage  with  the  owner  or  consignor.  The  liability  of  the  carrier 
at  common  law  continues  during  the  transportation  over  the  entire 
route  or  distance  over  which  he  has  agreed  to  carry  the  property  in- 
trusted to  him.  And  there  is  no  good  reason  for  making  any  distinc- 
tion in  the  nature  and  extent  of  this  liability  attaching  to  carriers,  as 
between  those  who  undertake  to  transport  property  by  the  use  of  the 
modern  methods  of  conveyance,  and  those  who  performed  a  like  ser- 
vice in  the  modes  formerly  in  use.  If  a  person  assumes  to  do  the  busi- 
ness of  a  common  carrier,  he  can,  if  he  sees  fit,  confine  it  within  such 


PINKERTON   V.  WOODWARD.  \^^ 

limits  that  it  may  be  done  under  his  personal  care  and  supervision  or 
by  agents  whom  he  can  select  and  control.  But  if  he  undertakes  to 
extend  it  further,  he  must  either  restrict  his  liability  by  a  special  con» 
tract  or  bear  the  responsibility  which  the  law  affixes  to  the  species  of 
contract  into  which  he  voluntarily  enters.  There  is  certainly  no  hardship 
in  this,  because  he  is  bound  to  take  no  greater  risk  than  that  which  is 
imposed  by  law  on  those  whom  he  employs  as  his  agents  to  fulfil  the 
contracts  into  which  he  has  entered. 

Exceptions  overruled. 


CLARK  V.  BURNS. 
Supreme  Judicial  Court  of  Massachusetts,  1875. 

[118il/ass.  275.] 

Contract,  for  the  value  of  a  watch,  against  the  owners  of  a  steam- 
ship as  common  carriers,  with  counts  in  tort  for  negligence,  and  also 
counts  charging  them  as  innkeepers.^ 

Gray,  C.  J.  The  liabilities  of  common  carriers  and  innkeepers, 
though  similar,  are  distinct.  No  one  is  subject  to  both  liabilities  at 
the  same  time,  and  witii  regard  to  the  same  property.  The  liability 
of  an  innkeeper  extends  only  to  goods  put  in  his  charge  as  keeper  of 
a  public  house,  and  does  not  attach  to  a  carrier  who  has  no  house  and 
is  engaged  only  in  the  business  of  transportation.  The  defendants, 
as  owners  of  steamboats  carr^dng  passengers  and  goods  for  hire,  were 
not  innkeepers.  They  would  be  subject  to  the  liability  of  common 
carriers  for  the  baggage  of  passengers  in  their  custody,  and  might 
perhaps  be  so  liable  for  a  watch  of  the  passenger  locked  up  in  his 
trunk  with  other  baggage.  But  a  watch,  worn  by  a  passenger  on  his 
person  by  day,  and  kept  by  him  within  reach  for  use  at  night,  whether 
retained  upon  his  person,  or  placed  under  his  pillow,  or  in  a  pocket 
of  his  clothing,  hanging  near  him,  is  not  so  intrusted  to  their  custody 
and  control  as  to  make  them  liable  for  it  as  common  carriers.  Steam- 
boat Crystal  Palace  v.  Vanderpool,  16  B.  Mon.  302;  Tower  v.  Utica 
Railroad,  7  Hill,  47 ;  Abbott  v.  Bradstreet,  55  Maine,  530 ;  Pullman 
Palace  Car  Co.  v.  Smith,  7  Chicago  Legal  News,  237. 


PINKERTON  V.  WOODWARD. 
Supreme  Court,  California,  1867. 

[33   Cal.  557.] 

Rhodes,  J.''    The  definition  of  an  inn,  given  by  Mr.  Justice  Bayley, 
in  Thompson  v.  Lacy,  3  B.  «fe  Aid.  286,  as  "  a  house  where  a  travel- 

^  The  evidence  is  omitted.     Only  so  much  of  the  opinion  as  discussed  the  liability 
of  the  defendants  on  the  counts  as  innkeepers  is  given.  — Ed. 

'  Only  so  much  of  the  opinion  as  describes  the  nature  of  an  inn  is  given.  —  Eo. 


186  PINKERTON   V.   WOODWAKD. 

ler  is  furnished  with  everj'thing  which  he  has  occasion  for  while  on 
his  way,"  is  comprehensive  enough  tx)  include  every  description  of  an 
inn ;  but  a  house  that  does  not  fill  the  full  measure  of  this  definition 
ma}'  be  an  inn.  It  probably  would  not  now  be  regarded  as  essential 
to  an  inn  that  wine  or  spirituous  or  malt  liquors  should  be  provided 
for  the  guests.  At  an  inn  of  the  greatest  completeness  entertainment 
is  furnished  for  the  traveller's  horse  as  woll  as  for  the  traveller,  but 
it  has  long  since  been  held  that  this  was  not  essential  to  give  charac- 
ter to  the  house  as  an  inn.  (See  Thompson  v.  Lacy,  suj?ra  ;  2  Kent, 
595 ;  1  Smith  Lead.  Cases,  notes  to  Coggs  v.  Bernard  ;  Sto.  on  Bail. 
Sec.  475 ;  Kisten  v.  Hildebrand,  9  B.  Mon.  74.)  In  Wintermute  v. 
Clarke,  5  Sandf.  247,  an  inn  is  defined  as  a  public  house  of  entertain- 
ment for  all  who  choose  to  visit  it.  The  defendant  insists  that  the 
"What  Cheer  House  "  was  a  lodging  house  and  not  an  inn  ;  because,  as 
he  says,  the  eating  department  was  distinct  from  the  lodging  depart- 
ment. It  appears  that  in  the  basement  of  the  "What  Cheer  House," 
and  connected  with  it  b}'  a  stairwa}-,  there  was  a  restaurant,  which 
was  conducted  by  the  defendant  and  two  other  persons  jointly-,  and 
that  the  three  shared  the  profits.  Where  a  person,  b}-  the  means 
usually  employed  in  that  business,  holds  himself  out  to  the  world  as  an 
innkeeper,  and  in  that  capacit)-,  is  accustomed  to  receive  travellers  as 
his  guests,  and  solicits  a  continuance  of  their  patronage,  and  a  trav- 
eller relying  on  such  representations  goes  to  the  house  to  receive  such 
entertainment  as  he  has  occasion  for,  the  relation  of  innkeeper  and 
guest  is  created,  and  the  innkeeper  cannot  be  heard  to  say  that  his 
professions  were  false,  and  that  he  was  not  in  fact  an  innkeeper.  The 
rules  regulating  the  respective  rights,  duties  and  responsibilities  of 
innkeeper  and  guest  have  their  origin  in  considerations  of  public  pol- 
icy, and  were  designed  mainly  for  the  protection  and  security  of  trav- 
ellers and  their  property.  They  would  afford  the  traveller  but  poor 
security  if,  before  venturing  to  intrust  his  property  to  one  who  by  his 
agents,  cards,  bills,  advertisements,  sign,  and  all  the  means  by  which 
publicity  and  notoriety  can  be  given  to  his  business,  represents  himself 
as  an  innkeeper,  he  is  required  to  inquire  of  the  employees  as  to  their 
interest  in  the  establishment,  or  take  notice  of  the  agencies  or  means 
by  which  the  several  departments  are  conducted.  The  same  consid- 
erations of  public  policy  that  dictated  those  rules  demand  that  the 
innkeeper  should  be  held  to  the  responsibilities  which,  by  his  repre- 
sentations, he  induced  his  guest  to  believe  he  would  assume.  We 
think  the  jury  were  fully  warranted  by  the  evidence  in  finding  that  the 
"  What  Cheer  House  "  was  an  inn,  and  that  the  defendant  was  an  inn- 
keeper ;  and  the  Court  correctly  instructed  the  jury  in  respect  to  those 
facts. 


LEWIS    V.   ]SEW    YOUK    SLEEPING   GAR    CO.  187 

LEWIS  V.  NEW  YORK  SLEEPING  CAR  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1887. 

[143  Mass.  267.] 

Morton,  C.  J.  The  use  of  sleeping  cars  upon  railroads  is  modem, 
and  there  are  few  adjudicated  cases  as  to  the  extent  of  the  duties  and 
liabilities  of  the  owners  of  such  cars.  They  must  be  ascertained  by 
applying  to  the  new  condition  of  things  the  comprehensive  and  elastic 
principles  of  the  common  law.  When  a  person  buys  the  right  to  the 
use  of  a  berth  in  a  sleeping  car,  it  is  entirely  clear  that  the  ticket  which 
he  receives  is  not  intended  to,  and  does  not,  express  all  the  terms  of 
the  contract  into  which  he  enters.  Such  ticket,  like  the  ordinary  rail- 
road ticket,  is  little  more  than  a  symbol  intended  to  show  to  the  agents 
in  charge  of  the  car  that  the  possessor  has  entered  into  a  contract  with 
the  company  owning  the  car,  by  which  he  is  entitled  to  passage  in  the 
car  named  on  the  ticket. 

Ordinarily,  the  only  communication  between  the  parties  is,  that  the 
passenger  buys,  and  the  agent  of  the  car  company  sells,  a  ticket  between 
two  points ;  but  the  contract  thereby  entered  into  is  implied  from  the 
nature  and  usages  of  the  employment  of  the  company. 

A  sleeping  car  company  holds  itself  out  to  the  world  as  furnishing 
safe  and  comfortable  cars,  and,  when  it  sells  a  ticket,  it  impliedly  stipu- 
lates to  do  so.  It  invites  passengers  to  pay  for,  and  make  use  of,  its 
cars  for  sleeping,  all  parties  knowing  that,  during  the  greater  part  of 
the  night,  the  passenger  will  be  asleep,  powerless  to  protect  himself  or 
to  guard  his  property.  He  cannot,  like  the  guest  of  an  inn,  b}'  locking 
the  door,  guard  against  danger.  He  has  no  right  to  take  any  such  steps 
to  protect  himself  in  a  sleeping  car,  but,  by  the  necessity  of  the  case, 
is  dependent  upon  the  owners  and  officers  of  the  car  to  guard  hini  and 
the  property'  he  has  with  him  from  danger  from  thieves  or  otherwise. 

The  law  raises  the  duty  on  the  part  of  the  car  company  to  afford  him 
this  protection.  While  it  is  not  liable  as  a  common  carrier  or  as  an 
innholder,  jet  it  is  its  duty  to  use  reasonable  care  to  guard  the  passen- 
gers from  theft,  and  if,  through  want  of  such  care,  the  personal  effects 
of  a  passenger  such  as  he  might  reasonably  carry  with  him  are  stolen, 
the  company  is  liable  for  it.  Such  a  rule  is  required  by  public  policy, 
and  by  the  true  interests  of  both  the  passenger  and  the  company ;  and 
the  decided  weight  of  authority  supports  it.  Woodruff  Sleeping  & 
Parlor  Coach  Co.  v.  Diehl,  84  Ind.  474 ;  Pullman  Car  Co.  v.  Gardner, 
3  Penny.  78 ;  Pullman  Palace  Car  Co.  v.  Gaylord,  23  Am.  Law  Reg. 
(N.  S.)  788. 

The  notice  by  which  the  defendant  company  sought  to  avoid  its  lia- 
bility was  not  known  to  the  plaintiff,  and  cannot  avail  the  defendant 

The  defendant  contends  that  there  was  no  evidence  of  negligence  oa 


188  CUMBERLAND   TELEPHONE   CO.  V.   BROWN. 

its  part.  The  fact  that  two  larcenies  were  committed  in  the  manner 
described  in  the  testimonj-  is  itself  some  evidence  of  the  want  of  proper 
watchfulness  b}'  the  porter  of  the  car ;  add  to  this  the  testimony  that 
the  porter  was  found  asleep  in  the  earl}'  morning,  that  he  was  required 
to  be  on  dut}-  for  thirty-six  hours  continuously,  which  included  two 
nights,  and  a  case  is  presented  which  must  be  submitted  to  the  jury. 

We  have  considered  all  the  questions  which  have  been  argued  in  the 
two  cases  before  us,  and  are  of  opinion  that  the  rulings  at  the  trial 
were  correct.  Exceptions  overruled} 

Grat,  C.  J.,  in  Grinnell  v.  Western  Union  Telegraph  Co.,  113  Mass. 
299  (1873).  The  liabilit}'  of  a  telegraph  company  is  quite  unlike  that 
of  a  common  carrier.  A  common  carrier  has  the  exclusive  possession 
and  control  of  the  goods  to  be  carried,  with  peculiar  opportunities  for 
embezzlement  or  collusion  with  thieves ;  the  identity  of  the  goods  re- 
ceived with  those  delivered  cannot  be  mistaken ;  their  value  is  capable 
of  easy  estimate,  and  ma}-  be  ascertained  by  inquiry  of  the  consignor,  and 
the  carrier's  compensation  fixed  accordingly ;  and  his  liabilitj'  in  damages 
is  measured  bj"  the  value  of  the  goods.  A  telegraph  company  is  intrusted 
with  nothing  but  an  order  or  message,  which  is  not  to  be  carried  in  the 
form  in  which  it  is  received,  but  is  to  be  transmitted  or  repeated  by 
electricitj',  and  is  peculiarh'  liable  to  mistake ;  which  cannot  be  the 
subject  of  embezzlement ;  which  is  of  no  intrinsic  value  ;  the  importance 
of  which  cannot  be  estimated  except  by  the  sender,  nor  ordinarily  dis- 
closed b\-  him  without  danger  of  defeating  his  own  purposes ;  which 
may  be  wholly  valueless,  if  not  forwarded  immediately  ;  for  the  trans- 
mission of  which  there  must  be  a  simple  rate  of  compensation ;  and  the 
measure  of  damages  for  a  failure  to  transmit  or  deliver  which,  has  no 
relation  to  any  value  which  can  be  put  on  the  message  itself. 


CUMBERLAND  TELEPHONE   CO.   v.  BROWN. 
Supreme  Coubt  of  Tennessee,  1900. 

[104  Tenn.  56.] 

Caldwell,  J.*  Brown  was  a  resident  of  the  cit}'  of  Nashville,  but 
was  temporarily  at  Hickman,  a  small  village  about  fifty -eight  miles  from 
Nashville,  and  two  miles  beyond  Gordonsville.  The  telephone  com- 
pany had  an  office  at  Nashville  and  one  at  Gordonsville,  but  none 
at  Hickman. 

In  tlie  afternoon  of  September  16,  1897,  Brown's  son  went  into  the 
office  at  Nashville  and  stated  to  the  operator  there  that  he  had  an  im- 

1  Arc.  Blam  r.  So.  P.  P.  C.  Co.,  1  Flip.  .SOO ;  Pullman  P.  C.  Co.  v.  Adams,  120  Ala. 
681  ;  Pullman  P.  C.  C:o.  v.  Smith,  73  111.  360  ;  Woodruflf  S.  &  P.  C.  Co.  v.  Diehl,  8i 
Ind.  474.    Contra,  Pullman  P.  C.  Co.  p.  Lowe,  28  Neb.  239.  —  Eb. 

•  Part  of  the  opinion  ouljr  is  given.  —  Ei>. 


CUMBERLAND   TELEPHONE    CO.   V.   BROWN.  189 

portant  message  for  his  father  at  Hickman.  The  operator  called  the 
company's  agent  at  Gordonsville,  and  put  the  son  in  communication 
with  him.  The  son,  availing  liimself  of  the  instrument  and  connection 
thus  afforded,  communicated  his  message  to  the  Gordonsville  agent, 
who  agreed  to  deliver  it  at  Hickman  ;  and  thereupon,  according  to  the 
usual  custom,  tlie  Nashville  agent  demanded  and  received  sixty-five 
cents  in  payment  of  total  charges,  being  twenty-five  cents  for  the  trans- 
mission of  the  message  to  Gordonsville  and  forty  cents  for  its  delivery 
at  Hickman.  The  message,  as  written  by  the  agent  at  Gordonsville, 
was  as  follows : 

"  Nashville,  Tennessee,  9-16-97. 

"  Mr.  J.  Thomas  Brown,  Hickman,  Tennessee. 

"  Come  home  immediately.     Your  daughter  is  dangerously  ill. 

"  (Signed)  Tom  Brown." 

Though  received  at  Gordonsville  at  5.15  p.  m.  of  that  da}',  and  so 
marked  on  its  face,  the  message  was  not  delivered  until  about  8  or  8.30 
A.  M.  the  next  day,  which  was  near  fifteen  hours  after  the  agent  got  it, 
and  some  five  hours  after  the  sendee's  daughter's  death,  of  which  he 
learned  thirty  minutes  later  through  another  message  transmitted  over 
the  same  line,  and  likewise  delivered  at  Hickman. 

The  compan}'  virtuall}'  concedes  the  foregoing  facts ;  but,  neverthe- 
less, denies  its  liability  in  this  case  upon  the  ground  that  it  had  in- 
structed its  operators  not  to  receive  messages  from  an}'  one  to  be  by 
any  agent  of  the  company  delivered  to  the  sendee,  and  that  the  under- 
taking of  the  Gordonsville  operator  to  deliver  this  message  at  Hickman 
was,  therefore,  without  authority,  and  not  binding  on  his  principal. 

It  was  in  relation  to  this  phase  of  the  case  that  the  trial  judge  gave 
the  charge  against  which  the  first  assignment  of  error  in  this  court  is 
directed.  That  charge  is  in  this  language,  namel}' :  "  In  the  opinion  of 
the  court  this  instruction  to  employees  is  of  little  consequence,  under 
the  conceded  facts  of  this  case.  If  the  company  knowingly  permitted 
its  employees,  over  its  own  wires,  to  make  such  arrangements  with  cus- 
tomers, ascertained  from  such  employees  the  cost  of  delivery  beyond 
the  terminus  of  the  line,  and  there  collected  from  the  customer  com- 
pensation for  the  entire  work,  then  the  fact  that  under  its  arrangement 
with  its  distant  operators  they  were  to  receive  the  pay  for  the  delivery 
beyond  the  terminus,  could  make  no  difference  so  far  as  the  customer 
was  concerned  ;  and  the  negligence  of  such  operator,  if  proven,  would 
be  the  negligence  of  the  company  itself." 

We  are  not  able  to  perceive  anj'  error  in  this  charge,  but  on  the  con- 
trary we  regard  it  as  entirely  sound. 

No  instruction  of  the  company  to  its  operators,  however  formal  and 
peremptory,  could  prejudice  the  rights  of  a  customer  if  it  knowingly 
permitted  those  agents  to  conduct  its  affairs  upon  a  plan  in  direct  con- 
flict with  that  instruction.     The  course  of  business  actually  pursued  by 


190  SEAVEB  V.  BEADLEY. 

the  company's  agents  with  its  knowledge  is  the  proper  and  legal  cri- 
terion of  its  responsibility  to  its  customers.  As  to  the  public  its  legal 
relation  is  that  indicated  by  its  recognized  course  of  business,  so  long 
as  the  latter  does  not  contravene  some  rule  of  positive  law  or  some 
public  policy. 

The  habitual  breach  and  disregard  of  the  instruction  by  the  operators 
of  the  company,  with  its  knowledge,  amounts  to  a  practical  abrogation 
of  the  instruction  (Railroad  v.  Reagan,  96  Tenn.  129,  140),  and  makes 
the  status  of  the  company  that  which  its  real  course  of  business 
imports. 

This  is  equall}*  true,  though  the  company  was  not  bound  in  the  first 
instance  to  receive  and  deliver  messages  at  all,  but  only  to  furnish 
suitable  instrumentalities  for  verbal  communication  between  separated 
members  of  the  public ;  for,  it  had  the  legal  power  to  assume  the  addi- 
tional duty,  and  could  do  so  as  well  in  the  manner  indicated  as  by 
the  promulgation  of  formal  notice  of  such  purpose. 

Nor  is  it  of  an}'  legal  consequence  in  the  present  case  that  the  Nash- 
ville operator  ma}-  have  testified  that  he  told  the  sender  of  this  message 
that  the  company  would  not  undertake  to  deliver  it,  since  he  concedes 
that  he  furnished  the  connection  with  the  express  understanding  that 
the  Gordonsville  operator  was  to  be  requested  to  deliver  it,  and  with 
the  assurance  that  he  would  do  whatever  he  agreed  to  do  about  it,  and 
after  the  arrangement  was  consummated,  collected  the  charges  for  de- 
liver}' as  well  as  for  tolls,  and  turned  the  same  into  the  treasury  of  the 
company. 

The  formal  statement  that  the  company  would  not  undertake  to 
deliver  the  message,  if  made,  must  go  for  nothing  in  the  face  of  the 
undisputed  facts  which  show  that  it  did  in  reality,  and  according  to 
its  custom,  undertake  and  agree  by  its  Gordonsville  agent  to  do  it. 


SEAVER  V.  BRADLEY. 
Supreme  Court  of  Massachusetts,  1901. 

[179  Mass.  329.] 

ToRT  under  Pub.  Sts.  c.  73,  §  6,  to  recover  for  the  loss  of  life  of  the 
plaintiff's  intestate  by  reasou  of  the  negligence  of  the  defendant,  alleged 
to  be  a  common  carrier  of  passengers,  operating  a  passenger  elevator 
In  the  building  owned  and  managed  by  him  as  trustee  numbered  171  A 
on  Tremont  Street  in  Boston.     Writ  dated  December  7,  1898. 

Holmes,  C.  J.  Those  who  maintain  a  passenger  elevator  in  an  office 
building  are  not  "  common  carriers  of  passengers"  within  the  meaning 
of  Pub.  iSts.  c.  73,  §  6.  We  assume  that  that  section  is  not  prevented 
from  applying  because  it  represents  a  statute  passed  before  such  eleva- 
tors were  in  familiar  use.    But  the  words  do  not  describe  the  owners  of 


NOLTON  V.   WESTERN   RAILROAD  CORPORATION.  191 

an  elevator.  The  modern  liability  of  common  carriers  of  goods  is  a 
resultant  of  the  two  long  accepted  doctrines  that  bailees  were  answer- 
able for  the  loss  of  goods  in  their  charge,  although  happening  without 
their  fault,  unless  it  was  due  to  the  public  enemy,  and  that  those  ex- 
ercising a  common  calling  were  bound  to  exercise  it  on  demand  and  to 
show  skill  in  their  calling.  Both  doctrines  have  disappeared,  although 
the}'  have  left  this  hybrid  descendant.  The  law  of  common  carriers  of 
passengers,  so  far  as  peculiar  to  them,  is  a  brother  of  the  half  blood. 
It  also  goes  back  to  the  old  principles  concerning  common  callings. 
Carriers  not  exercising  a  common  calling  as  such  are  not  common  car- 
riers whatever  their  liabilities  may  be.  But  the  defendant  did  not  exer- 
cise the  common  calling  of  a  carrier,  as  sufficiently  appears  from  the 
fact  that  he  might  have  shut  the  elevator  door  in  the  plaintiffs  face  and 
arbitrarily  have  refused  to  carry  him  without  incurring  an}'  liability  to 
him.  Apart  from  that  consideration,  manifestly  it  would  be  contrary 
to  the  ordinary  usages  of  English  speech  to  describe  by  such  words  the 
maintaining  of  an  elevator  as  an  inducement  to  tenants  to  occupy 
rooms  which  the  defendant  wished  to  let. 

The  only  question  before  us  is  the  meaning  of  words.  Therefore  de- 
cisions that  the  liability  of  people  in  the  defendant's  position  is  not  less 
than  that  of  railroad  companies  do  not  go  far  enough  to  make  out  the 
plaintiff's  case.  Mcceptions  overruled. 


NOLTON  V.  WESTERN  RAILROAD  CORPORATION. 
Court  of  Appeals,  New  York,  1857. 

[15  iV.    Y.  444.] 

Demurrer  to  complaint.  The  complaint  stated  that  the  plaintiff 
was  a  mail  agent  on  the  defendant's  railroad,  in  the  employment  of  the 
United  States,  and  the  defendant  a  carrier  of  passengers  and  freight, 
for  fare  and  reward,  by  railroad  and  cars,  between  Greenbush  and  Bos- 
ton. That  defendant  was  bound  by  contract  between  it  and  the  United 
States,  for  a  stipulated  time  and  price,  to  carry  the  mails,  and  also  the 
mail  agent,  without  further  charge ;  that  in  pursuance  and  in  consider- 
ation of  such  contract,  the  defendant  received  the  plaintiff  into  a  car 
fitted  up  for  the  accommodation  of  the  mail  and  mail  agent ;  and  the 
plaintiff,  for  the  consideration  aforesaid,  became  and  was  a  passenger 
in  the  said  cars,  to  be  by  the  defendant,  thereby,  safely  and  with  due 
care  and  skill,  carried  and  conveyed  to  Worcester,  which  the  defend- 
ant then  and  there  undertook  and  was  bound  to  do.  It  then  states  a 
bodily  injury  received  by  the  plaintiff,  by  the  running  of  the  car,  con- 
taining the  plaintiff,  off  the  track,  and  breaking  it,  through  defective- 
ness of  machinery,  want  of  care,  skill,  &c.  The  defendant  demurred, 
and  after  final  judgment  for  the  plaintiff,  by  the  Supreme  Court  at  gen- 


192  NOLTON  V.   WESTERN   RAILROAD   CORPORATION. 

eral  term,  appealed  to  this  court.  The  case  was  submitted  on  printed 
briefs. 

Selden,  J.  As  the  onh'  objection  which  can  be  taken  to  the  com- 
plaint upon  this  demurrer  is,  that  it  does  not  contain  facts  sufficient  to 
constitute  a  cause  of  action,  it  is  entireh'  immaterial  whether  the  action 
be  considered  as  in  form  ex  contractu  or  ex  delicto.  The  onlj-  question 
is,  whether  uix>n  the  facts  stated,  the  plaintiff  can  maintain  an  action 
in  an\-  form. 

The  plaintiff  cannot,  I  think,  avail  himself  of  the  contract  between 
the  defendant  and  the  government,  so  as  to  make  that  the  gravamen  of 
his  complaint,  and  the  foundation  of  a  recovery.  This  is  not  like  the 
cases  in  which  a  third  person  has  been  permitted  to  recover  upon  a  con- 
tract made  by  another  party  for  his  own  benefit.  The  distinction  be- 
tween them  is  plain.  Those  were  cases  where  the  defendant,  for  a 
consideration,  received  from  the  party  to  the  contract,  had  undertaken 
to  do  something  ostensibly  and  avowedly,  for  the  direct  benefit  of  the 
plaintiff,  and  when  the  advantage  to  the  latter  was  one  object  of  the 
agreement.  Here  the  parties  had  no  such  intention.  In  contracting 
for  the  transportation  of  the  mail  agent,  the  parties  had  no  more  in 
view  any  benefit  or  advantage  to  him,  than  if  the  contract  had  been  to 
transport  a  chattel.  The  government  took  care  of  the  public  interests, 
and  left  those  of  the  mail  agent  to  such  protection  as  the  law  would 
afford. 

Another  distinction  is,  that  in  the  cases  referred  to,  the  party  claim- 
ing the  benefit  of  the  contract,  and  seeking  to  enforce  it,  was  one  who 
was  specifically  mentioned  and  pointed  out  in  the  contract  itself,  while 
here  no  one  is  designated ;  and  to  entitle  the  plaintiff  to  recover  upon 
it,  it  must  be  regarded  as  a  shifting  contract,  which  can  be  made  to 
enure  t-o  the  benefit  of  anj'  person  who  may  temporaril}*  assume  the 
duties  of  mail  agent.  I  think  there  is  no  precedent  for  such  a  con- 
struction of  such  a  contract. 

If,  then,  the  plaintiff  can  recover  at  all,  it  must  be  upon  the  ground 
of  some  implied  contract,  or  of  some  legal  obligation  or  duty  resting 
upon  the  defendants,  to  exercise  proper  care  and  skill  in  the  transpor- 
tation of  passengers ;  and  the  question  is,  whether,  under  the  circum- 
stances of  this  case,  such  a  contract  is  implied,  or  such  a  dut}'  imposed 
for  the  benefit  of  the  plaintiff. 

It  would  seem  a  startling  proposition,  that  in  all  those  cases  where 
persons  travel  upon  railroads  engaged  not  in  their  own  business,  but 
that  of  others,  and  where  their  fare  is  paid  b}'  tlieir  employer,  the}'  are 
entirely  at  the  mercy  of  the  railroad  agents,  and  without  redress,  if 
injured  through  their  recklessness  and  want  of  care  and  skill.  If,  how- 
ever, railroad  companies  are  liable,  in  cases  like  the  present,  it  is  im- 
portant to  ascertain  the  precise  nature  and  extent  of  that  liability. 

In  the  first  place,  then,  it  is  clear  that  the}'  are  not  liable,  by  virtue 
of  that  custom  or  rule  of  the  common  law,  which  imposes  special  and 
peculiar  obligations  upon  common  carriers.     Persons  engaged  in  the 


NOLTON   V.    WESTERN    RAILROAD    CORPORATION.  193 

conveyance  of  passengers,  are  not  common  carriers,  within  the  mean- 
ing of  that  rule,  which  applies  solely  to  those  whose  business  it  is  to 
transport  goods.  (Bac.  Abr.,  tit.  Carriers  ;  2  Kent's  Com. ,  §  40 ;  Story 
on  Bail,  §  498,  and  note.) 

If  the  complaint  in  this  case,  after  stating  that  the  defendant  was  a 
carrier  of  passengers  and  freight  from  Greeni)ush  to  Boston,  for  hire 
and  reward,  had  simply  averred  that  the  plaintiff  became  a  passenger 
in  the  cars  of  the  defendant,  and  was  so  received  by  it ;  an  implied 
contract  would  have  arisen  on  the  part  of  the  defendant,  to  transport 
the  plaintiff  with  all  due  diligence  and  skill;  because  the  law  would 
have  inferred  from  those  facts,  that  the  defendant  was  to  receive  a  com- 
pensation from  the  plaintiff  himself.  But  this  inference  is  repelled  by 
the  contract  set  forth,  and  the  statement  that  the  plaintiflE"  was  received 
as  a  passenger  under  it. 

It  was  suggested  b}'  the  plaintiffs  counsel,  upon  the  argument,  that  a 
contract  might  be  implied,  of  which  the  agreement  between  the  defend- 
ant and  the  government  should  form  the  consideration  and  basis.  But 
although  that  agreement  ma}'  be  resorted  to,  for  the  purpose  of  show- 
ing that  the  plaintiff  became  a  passenger  upon  the  cars  by  the  consent 
of  the  defendant,  and  not  as  a  mere  intruder,  it  cannot,  I  think,  be 
made  available  by  the  plaintiff,  as  the  consideration  of  an  implied 
assumpsit.  As  to  him,  that  agreement  is  res  inter  alios  acta.  He  is 
not  a  party  to  it,  or  mentioned  in  it.  His  employment  by  the  govern, 
ment  may  have  taken  place  long  after  the  agreement  was  made,  and 
have  had  no  reference  to  it.  If  any  contract  can  be  implied  from  that 
agreement,  in  favor  of  the  plaintiff,  it  must  be  a  contract  to  transport 
him  from  place  to  place,  according  to  the  terms  of  the  agreement. 
Suppose,  then,  the  cause  of  action,  instead  of  being  for  an  injury  re- 
ceived through  the  negligence  of  the  defendant,  had  been  for  not  fur- 
nishing the  necessary  cars,  or  not  running  any  train,  could  the  plaintiff 
recover  in  such  an  action  ?  Would  the  defendant  be  liable  for  its  fail- 
ure to  perform  the  contract,  not  only  to  the  party  with  whom  the  con- 
tract was  made,  and  from  whom  the  consideration  was  received,  but  to 
a  third  party  not  named  in  it,  and'  from  whom  they  had  received  noth' 
ing?     No  one  would  claim  this. 

It  may  be  said  that  the  implied  contract  with  the  plaintiff,  is  limited 
to  an  undertaking  to  transport  safely  or  with  due  care-  It  is  difficult 
to  see,  however,  how  there  can  be  a  contract  to  transport  safelj*  where 
there  is  no  contract  to  transport  at  all.  My  conclusion  therefore  is, 
that  this  action  cannot  be  maintained  upon  the  basis  of  a  contract 
express  or  implied. 

It  necessai'ily  follows,  that  it  must  rest  exclusively  upon  that  obliga- 
tion which  the  law  always  imposes  upon  every  one  who  attempts  to 
do  anything,  even  gratuitously,  for  another,  to  exercise  some  degree 
of  care  and  skill  in  the  performance  of  what  he  has  undertaken. 
The  leading  case  on  this  subject,  is  that  of  Coggs  y.  Bernard  (Ld. 
Ray.   909).      There  the    defendant   had   undertaken  to  take    severaJ 


194  NOLTON   V.   WESTERN   RAILROAD   CORPORATION. 

hogsheads  of  brandy  belonging  to  the  plaintiff,  from  one  cellar  in 
London,  and  to  deposit  them  in  another ;  and  in  the  process  of  mov- 
ing, one  of  the  hogsheads  was  staved  and  the  brandy  lost,  through  the 
carelessness  of  the  defendant  or  his  servants.  Although  it  did  not 
appear  that  the  defendant  wap  to  receive  anything  for  his  services,  he 
was,  nevertheless,  held  liable  b}'  the  whole  court. 

The  principle  of  this  case  has  never  since  been  doubted,  but  there 
has  been  some  confusion  in  the  subsequent  cases  as  to  the  true  nature 
of  the  obligation,  and  as  to  the  form  of  the  remedy  for  its  violation.  In 
many  instances  suits  have  been  brought,  upon  the  supposition  that  an 
implied  contract  arises,  in  all  such  cases,  that  the  party  will  exercise 
due  care  and  diligence ;  and  the  language  of  Lord  Holt,  in  Coggs  v. 
Bernard,  undoubtedly  gives  countenance  to  this  idea.  He  seems  to 
treat  the  trust  and  confidence  reposed,  as  a  sufficient  consideration  to 
support  a  promise.  This  doctrine,  however,  can  hardly  be  considered 
as  in  consonance  with  the  general  principles  of  the  common  law.  In 
addition  to  the  difficulty  of  bringing  mere  trust  and  confidence  within 
any  legal  definition  of  valuable  consideration,  there  is  a  manifest  incon- 
gruity in  raising  a  contract,  to  do  with  care  and  skill,  that  which  the 
party  is  under  no  legal  obligation  to  do  at  all. 

The  dut}'  arises  in  such  cases,  I  apprehend,  entirely  independent  of 
any  contract,  either  expressed  or  implied.  The  principle  upon  which 
a  party  is  held  responsible  for  its  violation  does  not  differ  very  essen 
tially,  in  its  nature,  from  that  which  imposes  a  liability  upon  the 
owner  of  a  dangerous  animal,  who  carelessl}'  suffers  such  animal  to 
run  at  large,  by  means  of  which  another  sustains  injury ;  or  upon  one 
who  digs  a  ditch  for  some  lawful  purpose  in  a  highway,  and  carelessly 
leaves  it  uncovered  at  night,  to  the  injury  of  some  traveller  upon  the 
road.  It  is  true,  it  may  be  said  that,  in  these  cases,  the  duty  is  to  the 
public,  while  in  the  present  case,  if  it  exists  at  all,  it  is  to  the  indivld- 
4ial ;  but  the  basis  of  the  liability  is  the  same  in  both  cases,  viz.,  the 
culpable  negligence  of  the  part}-.  All  actions  for  negligence  presup- 
pose some  obligation  or  duty  violated.  Mere  negligence,  where  there 
was  no  legal  obligation  to  use  care,  as  where  a  man  digs  a  pit  upon  his 
own  land,  and  carelessly  leaves  it  open,  affords  no  ground  of  action. 
But  where  there  is  anything  in  the  circumstances  to  create  a  duty, 
either  to  an  individual  or  the  public,  any  neglect  to  perform  that  duty, 
from  which  injury  arises,  is  actionable. 

The  present  case  falls  clearly  within  this  principle  of  liability.  There 
can  be  no  material  difference  between  a  gratuitous  undertaking  to 
trans|X)rt  propert}',  and  a  similar  undertaking  to  transport  a  person. 
!f  either  are  injured  through  the  culpable  carelessness  of  the  carrier,,  he 
is  liable.  If,  according  to  the  case  of  Coggs  v.  Bernard  (supra),  and 
the  subsequent  cases,  an  obligation  to  exercise  care  arises  in  one  case, 
it  must  also  in  the  other. 

It  is  true  that,  according  to  the  authorities,  the  party  in  such  cases  is 
only  liable  for  gross  negligence.     But  what  will  amount  to  gross  negli- 


MARSHALL  V.    THE  YORK,   NEWCASTLE,  AND   BERWICK  RY.   CO.  195 

gence  depends  upon  the  special  circumstances  of  each  case.  It  has 
been  held  that,  when  the  condition  of  the  part}'  charged  is  such  as  to 
imply  peculiar  knowledge  and  skill,  the  omission  to  exercise  such  skill 
is  equivalent  to  gross  negligence.  Thus,  it  was  said  by  Lord  Lough- 
borough, in  Shiells  v.  Blackburne  (1  Hen.  Bl.,  158),  that  "if  a  man 
gratuitously  undertakes  to  do  a  thing  to  the  best  of  his  skill,  when  his 
situation  or  profession  is  such  as  to  imply  skill,  an  omission  of  that 
skill  is  imputable  to  him  as  gross  negligence." 

The  same  doctrine  is  advanced  by  Parke,  B.,  in  "Wilson  v.  Brett 
(11  Mees.  &  Wels.,  113).  He  says:  "In  the  case  of  a  gratuitous 
bailee,  where  his  profession  or  situation  is  such  as  to  imply  the  posses- 
sion of  competent  skill,  he  is  equally  liable  for  the  neglect  to  use  it." 

I  regard  this  principle  as  peculiarly  applicable  to  railroad  companies, 
in  view  of  the  magnitude  of  the  interests  which  depend  upon  the  skill 
of  their  agents,  and  of  the  utter  powerlessness  of  those  who  trust  to 
that  skill  to  provide  for  their  own  securit}'. 

This  case  is  not  like  that  of  "Winterbottom  v.  Wright  (10  Mees.  & 
Wels.,  109).  There  the  defendant  had  not  undertaken  to  transport  the 
plaintiff,  either  gratuitously  or  otherwise.  He  was  simply  bound  by 
contract  with  the  government  to  furnish  and  keep  in  repair  the  car- 
riages used  by  the  latter  in  transporting  the  mails.  The  relations  of 
the  parties  in  that  case  and  in  this  are  very  different,  and  the  cases 
cannot  be  considered  as  governed  by  the  same  principles. 

I  entertain  no  doubt  that  in  all  cases  where  a  railroad  company  vol- 
untarily undertakes  to  convey  a  passenger  upon  their  road,  whether 
with  or  without  compensation,  in  the  absence,  at  least,  of  an  express 
agreement  exempting  it  from  responsibility,  if  such  passenger  is  in- 
jured by  the  culpable  negligence  or  want  of  skill  of  the  agents  of  the 
compan}',  the  latter  is  liable.  The  matter  of  compensation  may  have  a 
bearing  upon  the  degree  of  negligence  for  which  the  company  is  liable. 
That  question,  however,  does  not  arise  here.  Degrees  of  negligence 
are  matters  of  proof,  and  not  of  averment.  The  allegations  of  negli- 
gence in  this  complaint  are  sufficient,  whether  the  defendant  is  liable 
for  ordinary  or  onl}-  for  gross  negligence. 

The  judgment  should  be  affirmed. 

Brown,  J.,  also  delivered  an  opinion  for  affirmance. 

All  the  judges  concurring.  Judgment  affirmed. 


196      SEASOXGOOD   V.  TENNESSEE   A  OHIO  TRANSPORTATION  CO. 


SEASONGOOD  v.  TENNESSEE  &  OHIO  TRANSPORTATION 

COMPANY. 

Court  op  Appeals  of  Kentucky,  1899. 

[54  S.  W.  1931.] 

GuFFT,  J.  The  principal  grounds  relied  on  by  appellants  for  a 
reversal  are  as  to  the  instructions  given  and  refused.  It  will  be  seen 
from  the  pleadings  (and  the  testimony  conduces  to  prove  the  same)  that 
one  McGrew  was  the  owner  of  a  warehouse  at  the  mouth  of  Hurricane 
creek,  which  was  the  only  point  at  which  the  goods  were  delivered  to 
and  from  steamboats  in  that  immediate  vicinit}",  and  that  it  was  the 
custom  of  appellee,  as  well  as  other  boats,  to  receive  freight  from  said 
warehouse,  and  that  McGrew  was  furnished  blank  bills  of  lading,  and 
collected  freight  bills.  The  collection,  however,  was  done  at  the  cost 
of  the  debtors.  He  was  also  employed  by  appellee  to  carry  the  United 
States  mail  from  the  steamboat  landing  to  the  post  office  at  Tolou.  It 
appears  from  the  testimonj'  that  on  a  certain  evening  appellee's  boat 
landed  at  the  landing  aforesaid,  and  that  the  clerk  of  the  boat  asked 
McGrew  what  he  had,  and  McGrew  replied  that  he  had  "  some  chickens 
and  eggs  for  Evansville,  and  a  box  for  Cincinnati,  and  do  you  want 
them  ?  "  The  clerk  replied,  in  substance,  that  he  would  take  the  chick- 
ens and  eggs,  but  would  not  take  the  box ;  that  appellee  had  an 
arrangement  with  another  company  that  carried  freight  between  New 
Orleans  and  Cincinnati  not  to  take  freight  to  any  point  beyond  Evans- 
ville, and  that  the  other  company'  would  not  take  freight  within  the 
boundary  between  Evansville  and  Cairo  or  Paducah ;  and  it  further 
appears  that  the  goods  were  stolen  the  same  night  that  appellee  refused 
to  take  them.  It  is  the  contention  of  appellee  that  it  was  not  required 
by  law  to  accept  the  box  tendered,  for  the  reason,  as  now  relied  on,  that 
it  could  not  be  required  to  receive  freight  destined  to  a  point  beyond  the 
end  of  its  own  line,  which  it  appears  in  this  case  was  Evansville,  Ind. 
It  is  true  that  the  appellee  was  not  bound  to  undertake  to  deliver  the 
box  to  the  consignee  at  Cincinnati,  but  it  was  its  duty  to  accept  the 
box,  if  tendered  to  it  as  a  common  carrier ;  for  it  was  then  its  duty 
to  carry  the  same  to  the  end  of  its  line,  and  there  deliver,  or  offer  to 
deliver,  the  box  to  some  common  carrier  engaged  in  such  business,  to 
be  by  it  forwarded  or  carried  to  Cincinnati.  It  is  clear  that  the  agree- 
ment between  appellee  Tand  the  other  compan}-  did  not  furnish  any 
excuse  for  its  failure  to  receive  the  goods.  Such  an  agreement  is  ille- 
gal and  not  enforceable  even  between  parties  thereto.  Much  less  can 
it  excuse  a  party  for  refusing  to  discbarge  its  duty  as  a  common  car- 
rier as  to  the  third  party.  Anderson  v.  Jett,  89  Ky.  375,  12  S.  W.  670, 
6  L.  R.  A.  390. « 

1  The  principal  point  is  printed.  —  Ed. 

9  See  Weatern  Union  Telegraph  Co.  j;.  Simmons  (Tex.  Civ.  App.),  93  S.  W.  688.  — 
Ed. 


BENNETT  V.   BUTTON.  197 

BENNETT  v.  BUTTON. 
Supreme  Court  of  New  Hampshire,  1839. 

[10  N.  H.  481.] 

Case.  The  declaration  alleged  that  the  defendant  was  part  owner, 
and  driver,  of  a  public  stage  coach,  from  Nashua  to  Amherst  and 
Francestown  —  that  on  the  31st  January,  1837,  the  plaintiff  applied  to 
him  to  be  received  into  his  coach,  at  Nashua,  and  conveyed  from  thence 
to  Amherst,  offering  to  pay  the  customary  fare ;  and  that  the  defend- 
ant, although  there  was  room  in  his  coach,  refused  to  receive  the 
plaintiff. 

It  appeared  in  evidence  that  at  the  time  of  the  grievance  alleged 
there  were  two  rival  lines  of  daily  stages,  running  between  Lowell,  in 
Massachusetts,  and  Nashua  —  that  Jonathan  B.  French  was  the  pro- 
prietor of  one  of  these  lines,  and  Nelson  Tuttle  of  the  other — that 
Tuttle's  line  ran  no  farther  than  from  Lowell  to  Nashua  —  that  French 
and  the  proprietors  of  the  defendant's  line  were  interested  in  a  contract 
for  carrying  the  United  States  mail  from  Lowell  to  Francestown,  through 
Amherst  (dividing  the  mail  money  in  proportion  to  the  length  of  their 
respective  routes),  so  as  to  form  one  continuous  mail  route  from  Lowell 
to  Francestown  —  that  French  and  the  proprietors  of  the  defendant's 
line  had  agreed  to  run  their  respective  coaches  so  as  to  form  a  contin- 
uous line  for  passengers  from  Lowell,  through  Amherst,  to  Frances- 
town,  and  that  their  agents  and  drivers  might  engage  seats  for  the 
whole  distance,  at  such  rates  of  fare  as  they  thought  expedient ;  and 
the  amount  thus  received,  in  instances  where  the}-  thought  proper  to 
receive  less  than  the  regular  fare,  was  to  be  divided  between  said  pro- 
prietors, in  proportion  to  the  length  of  their  respective  routes  —  that  it 
was  also  agreed  that  if  the  defendant's  line  brought  down  to  Nashua  an 
extra  number  of  passengers,  French  should  see  them  through,  and  be 
at  the  expense  of  furnishing  extra  coaches  and  horses,  if  necessar}',  to 
convey  them  to  Lowell ;  and,  on  the  other  hand,  if  French's  line  brought 
up  an  extra  number  of  passengers  from  Lowell  to  Nashua,  the  proprietors 
of  the  defendant's  line  were  to  do  the  same,  for  the  conve3ance  of  sucli 
passengers  above  Nashua  —  and  that  it  was  further  agreed  (as  Tuttle's 
line  ran  no  farther  than  from  Lowell  to  Nashua)  by  the  proprietors  of 
the  defendant's  line,  that  they  would  not  receive  into  their  coaches,  at 
Nashua,  passengers  for  places  above  Nashua,  who  came  up  from 
Lowell  to  Nashua  on  the  same  da}',  in  Tuttle's  line ;  the  time  of  start- 
ing from  Lowell  and  arriving  at  Nashua  being  the  same  in  both  lines. 

One  of  the  requisitions  of  mail  contracts  is,  that  each  line  of  stage 
coaches  running  into  another,  so  as  to  form  a  continuous  mail  line,  shall 
give  preference  to  passengers  arriving  in  the  line  with  which  it  connects, 
and  sliall  forward  them  in  preference  to  any  others. 

There  were  several  other  lines  which  started  from  Lowell  at  the  same 
time  with  the  lines  before  mentioned,  running  to  other  places,  through 


198  BENNETT   V.   DUTTON. 

Nashua ;  and  it  was  generally  the  uudeistanding  between  their  respec- 
tive proprietors  that  one  line  should  not  take,  for  a  part  of  the  distance 
where  tiie  route  was  the  same,  passengers  who  were  going  on  further 
in  another  line ;  though  this  understanding  had  been  occasionally 
interrupted. 

The  plaintiff  being  at  Lowell  on  the  Slst  of  January,  1837,  took  pas- 
sage and  was  conveyed  to  Nashua  in  Tuttle's  line ;  and  immediately' 
on  his  arrival  at  Nashua  applied  to  be  received  into  the  defendant's 
coach,  and  tendered  the  amount  of  the  regular  fare.  There  was  room 
for  the  plaintiff  to  be  conveyed  on  to  Amherst,  but  the  defendant 
refused  to  receive  him. 

The  plaintiff  was  notified  b}-  the  agent  for  the  line  of  French  and  the 
defendant,  at  Lowell,  previous  to  taking  passage  in  Tuttle's  coach  for 
Nashua,  that  if  he  wished  to  go  from  Nashua  to  Amherst  on  that  da}*, 
in  the  regular  mail  line,  he  must  take  the  mail  line  at  Lowell ;  and  that 
if  he  took  passage  in  Tuttle's  line  from  Lowell  to  Nashua  he  would  not 
be  received  at  Nashua  into  the  defendant's  coach. 

The  parties  agreed  that  judgment  should  be  rendered  for  the  plaintiff 
for  nominal  damages,  or  for  the  defendant,  according  to  the  opinion  of 
this  court  upon  these  facta. 

Clark  cfc  G.  Y.  Sawyer,  for  the  plaintiff,  cited  Story  on  Bailment, 
380 ;  2  Ld.  Raym.  909,  Coggs  v.  Bernard ;  Jones  on  Bailment,  109 ; 
2  Barn.  &  Adolph.  803,  Kent  v.  Shuckard. 

Baker  (with  whom  was  C.  G.  Atherton)^  for  the  defendant.  It  is 
not  denied  that  anciently  a  common  carrier  was  liable  for  refusing  to 
carry  goods ;  a  common  innkeeper  for  refusing  to  receive  a  guest ;  a 
common  ferryman  for  refusing  to  carry  a  passenger;  and  generall}', 
perhaps,  that  there  was  an  implied  obligation  upon  every  one  standing 
l)efore  the  public  in  a  particular  profession  or  employment  to  undertake 
the  duties  incumbent  upon  it ;  though  no  case  is  recollected  in  which  it 
has  been  determined  that  the  proprietor  of  a  stage  coach  is  liable  for 
refusing  to  receive  a  passenger.  2  Black.  451  ;  3  Black.  165  ;  1  Bac. 
Ab.  554  :  1  Vent.  333  ;  2  Show.  327 ;  Hard.  163  ;  Rob.  Ent.  103. 

Formerly  it  was  held  that  where  a  man  was  bound  to  an\'  duty,  and 
chargeable  to  a  certain  extent  by  operation  of  law,  he  could  not,  by  anv 
act  of  his  own,  discharge  himself  (1  Esp.  R.  36;  Noy's  Maxims,  92; 
Doc.  &  Stud.  270),  though  it  is  now  well  settled  that  this  obligation 
may  be  limited. 

A  liability  for  refusing  to  receive  a  passenger  may  be  qualified  by 
notice.  Without  notice  a  common  carrier  stands  in  the  situation  of  an 
insurer.  This  obligation  the  law  imposes  upon  him  the  moment  he 
takes  upon  himself  the  duties  of  carrier.  His  contract  with  the  public 
is  as  an  insurer;  and  if  goods  are  committed  to  his  care  while  stand- 
ing in  this  relation,  he  is  liable  as  such.  6  Johns.  160;  3  Esp.  127; 
Selw.  N.  P.  395;  1  Wils.  181  ;  1  Inst.  89;  1  T.  R.  33,  57;  5  T.  R. 
889  ;  Story  on  Bailment,  328  ;  11  Pick.  42  ;  4  N.  H.  Rep.  306. 

But  this  contract,  which  is  general  with  the  public,  may  be  made 


BENNETT   V.   DUTTON.  199 

special.  One  who  proposes  to  carry  goods  may  undertake  the  business, 
not  of  a  common,  but  of  a  special,  carrier.  He  may  give  notice,  when 
he  commences  business,  that  he  does  not  assume  all  the  responsibilities 
of  a  common  carrier,  technically  so  called ;  that  he  will  be  liable  to  a 
certain  extent,  and  upon  certain  conditions,  and  no  farther.  He  may 
thus  discharge  himself  from  all  responsibility*,  except  perhaps  in  cases 
of  gross  negligence.  3  Stark.  337 ;  3  Camp.  27;  Story  on  Bail.  338, 
357;  3  Taunt.  271 ;  4  Camp.  41 ;  Jones  on  Bail.  104  ;  6  East,  564  ;  4 
Esp.  178  ;  1  H.  Black.  298.  But  the  carrier  is  not  liable  for  refusing 
to  receive  what  he  is  under  no  obligation  to  carrj*  (16  East,  244),  so 
that  the  carrier  of  goods  may  not  only  qualify  his  responsibility  for  the 
safe  transportation  of  goods,  but  his  liabiUty  for  refusing  to  receive 
them. 

The  principle  to  be  derived  from  these  cases,  and  upon  which  they 
dl  rest,  is,  that  although  the  law  imposes  certain  obligations  upon  one 
who  undertakes  the  duties  of  a  particular  profession  or  employment,  he 
is  at  liberty  to  assume  those  duties  but  in  part,  and  thus  limit  his  re- 
sponsibility, provided  he  gives  notice  of  his  intention,  generally,  and 
that  notice  is  brought  home  to  the  knowledge  of  the  party  interested. 
The  principle  is  confined  to  no  one  branch  or  department  of  business ; 
to  no  one  case  or  class  of  cases.  Nothing  more  is  required  than  that 
public  notice  should  be  given  how  far  the  carrier  intends  to  limit  his 
^esponsibility,  and  that  it  should  be  known  to  the  person  to  be  affected 
by  it  in  season  to  save  his  interest.  The  main  point  is  to  show  the  in- 
tention of  the  carrier,  and  to  communicate  knowledge  of  his  terms, 
seasonably',  to  the  individual  interested.  5  East,  510;  2  Camp.  108; 
1  Stark.  Cas.  418 ;  2  Ditto,  461 ;  4  Burr.  2298 ;  1  Str.  145 ;  1  Bac. 
Abr.  556  ;  2  Stark.  Ev.  338  ;  1  Pick.  50.  And,  provided  the  intention 
be  manifest,  it  is  not  material  whether  any  other  person  may  have 
known  the  conditions,  except  the  party  whose  interest  they  may  affect. 
1  Str.  145  :   4  Burr.  2298  ;  2  Stark.  Cas.  461. 

But,  yielding  these  points,  it  is  contended  that  the  defendant  is  not 
liable.  It  was  competent  for  him  to  make  all  such  rules  and  regula- 
tions as  might  be  necessary  for  the  convenient  and  successful  prosecu- 
tion of  the  employment  in  which  he  was  engaged.  To  prosecute  this 
employment,  to  discharge  his  duties  to  the  public,  and  particularly  to 
the  post-office  department,  it  became  necessary  that  some  such  arrange- 
ment as  this  should  be  made.  It  was  as  proper  that  he  should  prescribe 
the  place  where  a  passenger  should  be  received  as  the  time  when  he 
should  be  received.  It  was  not  a  refusal  to  receive  all  passengers,  or 
this  one  in  particular,  but  merely  the  regulation  of  the  mode  in  which 
they  would  be  received.  Persons  going  from  Nashua  to  Francestown 
were  received  at  Nashua.  Persons  going  from  Lowell  to  Francestown 
were  received  at  Lowell.  This  was  all  that  the  defendant  did.  It  was 
a  mere  regulation  ;  not  a  refusal  to  discharge  a  duty  imposed  b}-  law. 

Parker,  C.  J.  It  is  well  settled  that  so  long  as  a  common  carrier 
has  convenient  room  he  is  bound  to  receive  and  carry  all  goods  which 


200  BENNETT   V.   BUTTON. 

are  offered  for  transportation,  of  the  sort  he  is  accustomed  to  carry,  if 
they  are  brought  at  a  reasonable  time,  and  in  a  suitable  condition. 
Story  on  Bailment,  328 ;  5  Bing.  II.  217,  Riley  v.  Home. 

And  stage  coaches,  which  transport  goods  as  well  as  passengers,  are, 
in  respect  of  such  goods,  to  be  deemed  common  carriers,  and  respon- 
sible accordingly.     Story,  325. 

Carriers  of  passengers,  for  hire,  are  not  responsible,  in  all  particulars, 
like  common  carriers  of  goods.  They  are  not  insurers  of  personal 
safety  against  all  contingencies  except  those  arising  from  the  acts  of 
God  and  the  public  enemy.  For  an  injury  happening  to  the  person  of 
a  passenger  by  mere  accident,  without  fault  on  their  part,  they  are  not 
responsible ;  but  are  liable  only  for  want  of  due  care,  diligence,  or  skill. 
This  results  from  the  different  nature  of  the  case.  But  in  relation  to 
the  baggage  of  their  passengers,  the  better  opinion  seems  to  be  that 
they  are  responsible  like  other  common  carriers  of  goods. 

And  we  are  of  opinion  that  the  proprietors  of  a  stage  coach,  for  the 
regular  transportation  of  passengers,  for  hire,  from  place  to  place,  are, 
as  in  the  case  of  common  carriers  of  goods,  bound  to  take  all  passengers 
who  come,  so  long  as  they  have  convenient  accommodation  for  their 
safe  carriage,  unless  there  is  a  sufficient  excuse  for  a  refusal.  2  Sumner, 
221 ;  Jencks  v.  Coleman  ;  19  Wend.  R.  239. 

The  principle  which  requires  common  carriers  of  goods  to  take  all  that 
are  offered,  under  the  limitations  before  suggested,  seems  well  to  apply. 

Like  innkeepers,  carriers  of  passengers  are  not  bound  to  receive  all 
comers.  8  N.  H.  Rep.  523,  Markham  v.  Brown.  The  character  of  the 
applicant,  or  his  condition  at  the  time,  may  furnish  just  grounds  for  his 
exclusion.  And  his  object  at  the  time  may  furnish  a  sufficient  excuse 
for  a  refusal ;  as,  if  it  be  to  commit  an  assault  upon  another  passenger, 
or  to  injure  the  business  of  the  proprietors. 

The  case  shows  the  defendant  to  have  been  a  general  carrier  of  pas- 
sengers, for  hire,  in  his  stage  coach,  from  Nashua  to  Amherst,  at  the 
time  of  the  plaintiff's  application.  It  is  admitted  there  was  room  in 
the  coach,  and  there  is  no  evidence  that  he  was  an  improper  person  to 
be  admitted,  or  that  he  came  within  any  of  the  reasons  of  exclusion 
before  suggested. 

It  has  been  contended  that  the  defendant  was  onl}-  a  special  carrier 
of  passengers,  and  did  not  hold  himself  out  as  a  carrier  of  persons  gen- 
erally ;  but  the  facts  do  not  seem  to  show  a  holding  out  for  special  em- 
ployment. He  was  one  of  the  proprietors,  and  the  driver,  of  a  line  of 
stages,  from  Nashua  to  Amherst  and  Francestown.  The}'  held  them- 
selves out  as  general  passenger  carriers  between  those  places.  But  b}' 
reason  of  their  connection  with  French's  line  of  stages  from  Lowell  to 
Nashua,  they  attempted  to  make  an  exception  of  persons  who  came 
from  Lowell  to  Nashua  in  Tuttle's  stage,  on  the  same  day  in  which  they 
applied  for  a  passage  for  the  north.  It  is  an  attempt  to  limit  their  re- 
sponsibility in  a  particular  case  or  class  of  cases,  on  account  of  their 
agreement  with  French. 


ATCH.,  TOP.   &  S.   F.  R.  V.   DENVER  &  NEW   ORLEANS  R.  201 

It  is  further  contended,  that  the  defendant  and  other  proprietors  had 
a  right  to  make  rules  for  the  regulation  of  their  business,  and  among 
them  a  rule  that  passengers  from  Lowell  to  Amherst  and  onward 
should  take  French's  stage  at  Lowell,  and  that  by  a  notice  brought 
home  to  the  individual  the  general  responsibility  of  the  defendant,  if  it 
existed,  is  limited. 

But  we  are  of  opinion  that  the  proprietors  had  no  right  to  limit  their 
general  responsibility  in  this  manner. 

It  has  been  decided  in  New  York  that  stage  coach  proprietors  are 
answerable,  as  common  carriers,  for  the  baggage  of  passengers,  that 
they  cannot  restrict  their  common  law  liability  by  a  general  notice  that 
the  baggage  of  passengers  is  at  the  risk  of  the  owners,  and  that  if  a 
carrier  can  restrict  his  common  law  liability,  it  can  only  be  by  an  ex- 
press contract.  19  Wend.  234,  HolUster  v.  Nowlen.  And  this  prin- 
ciple was  applied,  and  the  proprietors  held  Uable  for  the  loss  of  a  trunk, 
in  a  case  where  the  passenger  stopped  at  a  place  where  the  stages  were 
not  changed,  and  he  permitted  the  stage  to  proceed,  without  any  in- 
quir}-  for  his  baggage.  19  Wend.  251,  Cole  v.  Goodwin.  However 
this  may  be,  as  there  was  room  in  ihe  defendant's  coach,  he  could  not 
have  objected  to  take  a  passenger  from  Nashua,  who  applied  there, 
merely  because  he  belonged  to  some  other  town.  That  would  furnish 
no  sufficient  reason,  and  no  rule  or  notice  to  that  effect  could  limit  his 
duty.  And  there  is  as  little  legal  reason  to  justify  a  refusal  to  take  a 
passenger  from  Nashua,  merely  because  he  came  to  that  place  in  a  par- 
ticular conveyance.  The  defendant  might  well  have  desired  that  pas- 
sengers at  Lowell  should  take  French's  line,  because  it  connected  with 
his.  But  if  he  had  himself  been  the  proprietor  of  the  stages  from 
Lowell  to  Nashua  he  could  have  had  no  right  to  refuse  to  take  a  pas- 
senger from  Nashua,  merely  because  he  did  not  see  fit  to  come  to  that 
place  in  his  stage.  It  was  not  for  him  to  inquire  whether  the  plaintiflf 
came  to  Nashua  from  one  town  or  another,  or  b}'  one  conveyance  or 
another.  That  the  plaintiff"  proposed  to  travel  onward  from  that  place 
could  not  injuriously  affect  the  defendant's  business  ;  nor  was  the  plaintiflf 
to  be  punished  because  he  had  come  to  Nashua  in  a  particular  manner. 

The  defendant  had  good  right,  by  an  agreement  with  French,  to  give 
a  preference  to  the  passengers  who  came  in  French's  stage ;  and  as 
the}'  were  carriers  of  the  mail  on  the  same  route,  it  seems  he  was  bound 
so  to  do,  without  an  agreement.  If,  after  they  were  accommodated, 
there  was  still  room,  he  was  bound  to  carry  the  plaintiff,  without  in- 
quiring in  what  line  he  came  to  Nashua. 


ATCHISON,  TOPEKA  AND  SANTA  Ft  RAILROAD  v.  DEN- 
VER AND  NEW  ORLEANS  RAILROAD. 

Supreme  Court  of  the  United  States.     1884. 

[IIO  U.  S.  667.] 


202         ATCH.,   TOP.   &   S.   F.   R.   V.    DENVER  A^  NEW   ORLEANS   R. 

Bill  in  equity  by  the  Denver  &  New  Orleans  Railroad  Company, 
owning  and  operating  a  railroad  between  Denver  and  Pueblo,  about 
one  hundred  and  twenty-five  miles,  against  the  Atciiison,  Topeka  & 
Santa  Fe  Railroad  Company,  a  Kansas  corporation,  owning  and 
operating  a  railroad  in  that  State  from  the  Missouri  River,  at  Kan- 
sas City,  westerl}'  to  the  Colorado  State  line,  and  also  operating  from 
there,  under  a  lease,  a  road  in  Colorado  from  the  State  line  to  Pueblo, 
built  b}'  the  Pueblo  &  Arkansas  Valle}'  Railroad  Company-,  a  Colorado 
corporation.  The  two  roads  so  operated  by  the  Atchison,  Tojicka  & 
Santa  Fe  Compan}'  formed  a  continuous  line  of  communication  from 
Kansas  City  to  Pueblo,  about  six  hundred  and  thirty-four  miles.  The 
general  purpose  of  the  suit  was  to  compel  the  Atchison,  Topeka  & 
Santa  Fe  Company  to  unite  with  the  Denver  &  New  Orleans  Company 
in  forming  a  through  line  of  railroad  transportation  to  and  from  Den- 
ver over  the  Denver  &  New  Orleans  road,  with  all  the  privileges  as  to 
exchange  of  business,  division  of  rates,  sale  of  tickets,  issue  of  bills 
of  lading,  checking  of  baggage  and  interchange  of  cars,  that  were  or 
might  be  customary  with  connecting  roads,  or  that  were  or  might  be 
granted  to  the  Denver  &  Rio  Grande  Railroad  Company,  another  Col- 
orado corporation,  also  owning  and  operating  a  road  parallel  to  that  of 
the  Denver  &  New  Orleans  Company  between  Denver  and  Pueblo,  or  to 
any  other  railroad  company  competing  with  the  Denver  &  New  Orleans 

It  appeared  that  when  the  Atchison,  Topeka  &  Santa  Fe  Company 
reached  Pueblo  with  its  line  it  had  no  connection  of  its  own  with  Den- 
ver. The  Denver  &  Rio  Grande  road  was  built  and  running  between 
Denver  and  Pueblo,  but  the  gauge  of  its  track  was  different  from  that 
of  the  Atchison,  Topeka  &  Santa  Fe.  Other  companies  occupying 
different  routes  had  at  the  time  substantially  tlie  control  of  the  trans- 
portation of  passengers  and  freight  between  the  Missouri  River  and 
Denver.  The  Atchison,  Topeka  &  Santa  Fe  Company,  being  desirous 
of  competing  for  this  business,  entered  into  an  arrangement,  as  early 
as  1879,  with  the  Denver  &  Rio  Grande  Company  for  the  formation  of 
a  through  line  of  transportation  for  that  purpose.  By  this  arrange- 
ment a  third  rail  was  to  be  put  down  on  the  track  of  the  Denver  & 
Rio  Grande  road,  so  as  to  admit  of  the  passage  of  cars  continuous!}- 
over  both  roads,  and  terms  were  agreed  on  for  doing  the  business  and 
for  the  division  of  rates.  The  object  of  the  parties  was  to  establish  a 
new  line,  which  could  be  worked  with  rapidity  and  economy,  in  compe- 
tition with  the  old  ones. 

In  1882  the  Denver  &  New  Orleans  Company  completed  its  road 
between  Denver  and  Pueblo,  and  connected  its  track  with  that  of  the 
Atchison,  Topeka  &  Santa  F^.  in  PueMo,  twelve  or  fifteen  hundred  feet 
easterly  from  the  junction  of  the  Denver  &  Rio  Grande,  and  about 
three-quarters  of  a  mile  from  the  union  depot  at  which  the  Atchison, 
Topeka  &  Santa  Fe  and  the  Denver  &.  Rio  Grande  intcrchnnged  their 
business,  and  where  each  stopped  its  trains  re«rnlarly  to  take  on  and 
let  off  passengers  and  receive  and  deliver  freight.     The   Denver   & 


ATCH.,   TOP.   &   S.    F.    R.    V.   DENVER   &   NEW   ORLEANS   R,       203 

New  Orleans  Company  erected,  at  its  junction  with  the  Atchison,  To* 
peka  &  Santa  Fe,  platforms  and  other  accommodations  for  the  inter- 
change of  business,  and  before  this  suit  was  begun  the  general  super- 
intendent of  the  Denver  &  New  Orleans  Company  made  a  request  in 
writing  of  the  general  manager  of  the  Atchison,  Topeka  &  Santa  Fe, 
as  follows : 

"  That  through  bills  of  lading  be  given  via  your  line  and  ours,  and 
that  you  allow  all  freight  consigned  via  D.  &  N.  O.  R.  R.  to  be  deliv- 
ered this  company  at  point  of  junction,  and  on  such  terms  as  exist 
between  jour  road  and  any  other  line  or  lines ;  that  you  allow  your 
cars,  or  cars  of  any  foreign  line,  destined  for  points  reached  by  the 
T).  &  N.  O.  R.  R.,  to  be  delivered  to  this  company  and  hauled  to  desti- 
nation in  same  manner  as  interchanged  with  any  other  line.  That  j'ou 
allow  tickets  to  be  placed  on  sale  between  points  on  line  of  D.  «fe  N.  O. 
R.  R.  and  those  on  line  of  A.  T.  &  S.  F.  R.  R.,  or  reached  by  either 
line  ;  that  a  system  of  through  checking  of  baggage  be  adopted ;  that 
a  transfer  of  U.  S.  mail  be  made  at  point  of  junction.  In  matter  of 
settlements  between  the  two  companies  for  earnings  and  charges  due, 
we  will  settle  dail}-  on  delivery  of  freight  to  this  line ;  for  mileage  due 
for  car  service,  and  for  amounts  due  for  tickets  interchanged,  we  agree 
to  settle  monthl}',  or  in  any  other  manner  adopted  bj-  your  line,  or  as 
is  customary  between  railroads  in  such  settlements." 

This  request  was  refused,  and  the  Atchison,  Topeka  &  Santa  F^ 
Company  continued  its  through  business  with  the  Denver  &  Rio 
Grande  as  before,  but  declined  to  receive  or  deliver  freight  or  pas- 
sengers at  the  junction  of  the  Denver  &  New  Orleans  road,  or  to  give 
or  take  through  bills  of  lading,  or  to  sell  or  receive  through  tickets,  or 
to  check  baggage  over  that  line.  All  passengers  or  freight  coming 
from  or  destined  for  that  line  were  taken  or  delivered  at  the  regular 
depot  of  the  Atchison,  Topeka  &  Santa  Fe  Companj'  in  Pueblo,  and 
the  prices  charged  were  according  to  the  regular  rates  to  and  from  that 
point,  which  were  more  than  the  Atchison,  Topeka  &  Santa  Fe  received 
on  a  division  of  through  rates  to  and  from  Denver  under  its  arrange- 
ment with  the  Denver  &  Rio  Grande  Compan}-.  .  .   . 

Upon  this  state  of  facts  the  Circuit  Court  entered  a  decree  requiring 
the  Atchison,  Topeka  &  Santa  Fe  Company  to  stop  all  its  passenger 
trains  at  the  platform  built  by  the  Denver  &  New  Oi'leans  Company 
where  the  two  roads  joined,  and  to  remain  there  long  enough  to  take 
on  and  let  off  passengers  with  safety,  and  to  receive  and  deliver 
express  matter  and  the  mails.  It  also  required  the  Atchison,  Topeka 
&  Sante  Fe  Company  to  keep  an  agent  there,  to  sell  tickets,  check 
baggage,  and  bill  freight.  All  freight  trains  were  to  be  stopped  at  the 
same  place  whenever  there  was  freight  to  be  taken  on  or  delivered,  if 
proper  notice  was  given.  While  the  Atchison,  Topeka  &  Santa  F^ 
Company  was  not  required  to  issue  or  recognize  through  bills  of  lading 
embracing  the  Denver  &  New  Orleans  road  in  the  route,  or  to  sell  or 
recognize  through  tickets  of  the  same  character,  or  to  check  baggage 


204      ATCH.,  TOP.   &   S.   F.   R.   V.   DENVER   A  NEW  ORLEANS   E. 

in  connection  with  that  road,  it  was  required  to  carry  freight  and  pas* 
sengers  going  to  or  coining  from  that  road  at  the  same  price  it  would 
receive  if  the  passenger  or  freight  were  carried  to  or  from  the  same 
point  upon  a  through  ticket  or  through  bill  of  lading  issued  under  any 
arrangement  with  the  Denver  &  Rio  Grande  Company  or  any  other 
competitor  of  the  Denver  &  New  Orleans  Company  for  business.  In 
short,  the  decree,  as  entered,  establishes  in  detail  rules  and  regulations 
for  the  working  of  the  Atchison,  Topeka  &  Santa  F^  and  Denver  & 
New  Orleans  roads,  in  connection  with  each  other  as  a  connecting 
through  line,  and,  in  effect,  requires  the  Atchison,  Topeka  &  Santa  F^ 
Company  to  place  the  Denver  &  New  Orleans  Company  on  an  equal 
footing  as  to  the  interchange  of  business  with  the  most  favored  of  the 
competitors  of  that  company,  both  as  to  prices  and  facilities,  except  in 
respect  to  the  issue  of  through  bills  of  lading,  through  checks  for  bag- 
gage, through  tickets,  and  perhaps  the  compulsory  interchange  of  cars. 

P^rom  this  decree  both  companies  appealed  ;  the  Atchison,  Topeka 
&  Santa  Fe  Company  because  the  bill  was  not  dismissed  ;  and  the 
Denver  &  New  Orleans  Company  because  the  decree  did  not  fix  the 
rates  to  be  charged  by  the  Atchison,  Topeka  &  Santa  F6  Compan}-  for 
freight  and  passengers  transported  by  it  in  connection  with  the  Denver 
&  New  Orleans,  or  make  a  specific  division  and  apportionment  of 
through  rates  between  the  two  companies,  and  because  it  did  not 
require  the  issue  of  through  tickets  and  through  bills  of  lading,  and 
the  through  checking  of  baggage. 

Mr.  H.  C.  Thatcher,  Mr.  Charles  E.  Gast,  Mr.  George  R.  Peck, 
and  Mr.  William  M.  Eoarts  for  the  Atchison,  Topeka  &  Santa  F^ 
Railroad  Company. 

Mr.  E.  T.  Weils  for  the  Denver  &  New  Orleans  Railroad  Company. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court.^ 
After  reciting  the  facts  in  the  foregoing  language  he  continued : 

The  case  has  been  presented  by  counsel  in  two  aspects : 

1.  In  view  of  the  ,  requirements  of  the  Constitution  of  Colorado 
alone ;   and 

2.  In  view  of  the  constitutional  and  common-law  obligations  of  rail- 
road companies  in  Colorado  as  common  carriers. 

We  will  first  consider  the  requirements  of  the  Constitution;  and 
here  it  may  be  premised  that  sec.  6  of  art.  15  imposes  no  greater 
obligations  upon  the  compan}'  than  the  common  law  would  have  im- 
posed without  it.  Every  common  carrier  must  carr}-  for  all  to  the 
extent  of  his  capacity,  without  undue  or  unreasonable  discrimination 
either  in  charges  or  facilities.  The  Constitution  has  taken  from  the 
legislature  the  power  of  abolishing  this  rale  as  applied  to  railroad 
companies. 

So  in  sec.  4  there  is  nothing  speciall}'  important  to  the  present 
inquiry  except  the  last  sentence :  "  Every  railroad  company-  shall 
have  the  right  with  its  road  to  intersect,  connect  with,  or  cross  any 
^  Part  of  the  opinion  \a  omitted.  —  Ed. 


ATCH.,   TOP.   A   S.   F.   R.  V.   DENVER  &  NEW  ORLEANS   R.       205 

other  railroad."  Railroad  companies  are  created  to  serve  the  public 
as  carriers  for  hire,  and  their  obligations  to  the  public  are  such  as  the 
law  attaches  to  that  service.  The  only  exclusively  constitutional  ques- 
tion in  the  case  is,  therefore,  whether  the  right  of  one  railroad  com- 
pany to  connect  its  road  with  that  of  another  company,  which  has  been 
made  part  of  the  fundamental  law  of  the  State,  implies  more  than  a 
mechanical  union  of  the  tracks  of  the  roads  so  as  to  admit  of  the  con- 
venient passage  of  cars  from  one  to  the  other.  The  claim  on  the  part 
of  the  Denver  &  New  Orleans  Company  is  that  the  right  to  connect 
the  roads  includes  the  right  of  business  intercourse  between  the  two 
companies,  such  as  is  customar}'  on  roads  forming  a  continuous  line, 
and  that  if  the  companies  fail  or  refuse  to  agree  upon  the  terms  of 
their  intercourse  a  court  of  equity  may,  in  the  absence  of  statutory 
regulations,  determine  what  the  terms  shall  be.  Such  appears  to  have 
been  the  opinion  of  the  Circuit  Court,  and  accordingly  in  its  decree  a 
compulsory  business  connection  was  established  between  the  two  com- 
panies, and  rules  were  laid  down  for  the  government  of  their  conduct 
towards  each  other  in  this  new  relation.  In  other  words,  the  court  has 
made  an  arrangement  for  the  business  Intercourse  of  these  companies 
such  as,  in  its  opinion,  the}'  ought  in  law  to  have  made  for  themselves. 

There  is  here  no  question  as  to  how  or  where  the  ph3'sical  connec- 
tion of  the  roads  shall  be  made,  for  that  has  already  been  done  at  the 
place,  and  in  the  wa}',  decided  upon  by  the  Denver  &  New  Orleans 
Company  for  itself,  and  the  Atchison,  Topeka  &  Santa  Fe  Company 
does  not  ask  to  have  it  changed.  The  point  In  dispute  upon  this 
branch  of  the  case,  therefore,  is  whether,  under  the  Constitution  of 
Colorado,  the  Denver  &  New  Orleans  Company  has  a  constitutional 
riglit,  which  a  court  of  chancery  can  enforce  by  a  decree  for  specific 
performance,  to  form  the  same  business  connection,  and  make  the  same 
traffic  arrangement,  with  the  Atchison,  Topeka  «fe  Santa  Fe  Company 
as  that  company  grants  to,  or  makes  with,  any  competing  company 
operating  a  connected  road. 

The  right  secured  by  the  Constitution  is  that  of  a  connection  of  one 
road  with  another,  and  the  language  used*  to  describe  the  grant  is 
strikingly  like  that  of  sec.  23  of  the  charter  of  the  Baltimore  &  Ohio 
Railroad  Company,  given  by  Maryland  on  the  28th  of  February,  1827, 
Laws  of  Maryland,  1826,  c.  123,  which  is  in  these  words : 

"  That  full  right  and  privilege  is  hereby  reserved  to  the  citizens  of 
this  State,  or  any  company  hereafter  to  be  incorporated  under  the 
authority  of  this  State,  to  connect  with  the  road  hereby  provided  for, 
any  other  railroad  leading  from  the  main  route,  to  any  other  part  or 
parts  of  the  State." 

At  the  time  this  charter  was  granted  the  idea  prevailed  that  a  rail- 
road could  be  used  like  a  public  highway  by  all  who  chose  to  put  car- 
riages thereon,  subject  only  to  the  payment  of  tolls,  and  to  reasonable 
regulations  as  to  the  manner  of  doing  business,  LaJce  Sup.  <&  Miss.  Ji. 
R.  Co.  V.  United  States,  93  U.  S.  442  ;  but  that  the  word  "  <sonnect,"  as 


203       ATCH.,   TOP.   &  S.   F.   R.   V.   DENVER  &  NEW   ORLEANS   R. 

here  used,  was  not  supposed  to  mean  anything  more  than  a  mechanical 
union  of  the  tracks  is  apparent  from  the  fact  that  when  afterwards,  on 
the  9th  of  March,  1833,  authority  was  given  the  owners  of  certain  fac- 
tories to  connect  roads  from  their  factories  with  the  Washington  branch 
of  the  Baltimore  &  Ohio  Company,  and  to  erect  depots  at  the  junc- 
tions, it  was  in  express  terms  made  "  the  duty  of  the  company  to  take 
from  and  deliver  at  said  depot  any  produce,  merchandise,  or  manufac- 
tures, or  other  articles  whatsoever,  which  they  (the  factory  ownere) 
maj'  require  to  be  transported  on  said  road."  Maryland  Laws  of  1832, 
c.  175,  sec.  16.  The  charter  of  the  Baltimore  &  Ohio  Company  was 
one  of  the  earliest  ever  granted  in  the  United  States,  and  while  from 
the  beginning  it  was  common  in  most  of  the  States  to  provide  in  some 
form  b}'  charters  for  a  connection  of  one  railroad  with  another,  we 
have  not  had  our  attention  called  to  a  single  case  wihere,  if  more  than 
a  connection  of  tracks  was  required,  the  additional  requirement  was 
not  distinctly  stated  and  defined  by  the  legislature. 

Legislation  regarding  the  duties  of  connected  roads  because  of  their 
connection  is  to  be  found  in  many  of  the  States,  and  it  began  at  a  ver}' 
early  day  in  the  history'  of  railroad  construction.  As  long  ago  as  1842 
a  general  statute  upon  the  subject  was  passed  in  Maine,  Stats,  of 
Maine,  1842,  c.  9  ;  and  in  1854,  c.  93,  a  tribunal  was  established  for 
determining  upon  the  "  terms  of  connection  "  and  "the  rates  at  which 
passengers  and  merchandise  coming  from  the  one  shall  be  transported 
over  the  other,"  in  case  the  companies  themselves  failed  to  agree. 
Other  States  have  made  different  provisions,  and  as  railroads  have 
increased  in  number,  and  their  relations  have  become  more  and  more 
complicated,  statutory  regulations  have  been  more  frequently  adopted, 
and  with  greater  particularity  in  matters  of  detail.  Much  litigation 
has  grown  out  of  controversies  between  connected  roads  as  to  their 
respective  rights,  but  we  have  found  no  case  in  which,  without  legisla- 
tive regulation,  a  simple  connection  of  tracks  has  been  held  to  estab- 
lish any  contract  or  business  relation  between  the  companies.  .  .   . 

To  our  minds  it  is  clear  that  the  constitutional  light  in  Colorado  to 
connect  railroad  with  railroad  does  not  itself  imply  the  right  of  con- 
necting business  with  business.  The  railroad  companies  are  not  to  be 
connected,  but  their  roads.  A  connection  of  roads  may  make  a  con- 
nection in  business  convenient  and  desirable,  but  the  one  does  not 
necessarily  carrj'  with  it  the  other.  The  language  of  the  Constitution 
is  that  railroads  may  "  intersect,  connect  with,  or  cross"  each  other. 
This  clearly  applies  to  the  road  as  a  physical  structure,  not  to  the  cor- 
poration or  its  business. 

This  brings  us  to  the  consideration  of  the  second  branch  of  the 
case,  to  wit,  the  relative  rigiits  of  the  two  companies  at  common  law 
and  under  the  Constitution,  as  owners  of  connected  roads,  it  being 
conceded  that  there  are  no  statutory  regulations  applicable  to  the 
subject. 

The  Constitution  expressl}*  provides : 


ATCH.,   TOP.   &  S.   F.   U.   V.   DENVER   &  NEW   ORLEANS   B.       207 

1.  That  all  shall  have  equal  rights  in  the  transportation  of  persons 
and  property ; 

2.  That  there  shall  not  be  any  undue  or  unreasonable  discrimination 
in  charges  or  facilities ;  and 

3.  That  preferences  shall  not  be  given  in  furnishing  cars  or  motive 
power. 

It  does  not  expressl}'  provide  : 

1.  That  the  trains  of  one  connected  road  shall  stop  for  the  exchange 
of  business  at  the  junction  with  the  other ;  nor 

2.  That  companies  owning  connected  roads  shall  unite  in  forming  a 
through  line  for  continuous  business,  or  haul  each  other's  cars  ;  nor 

3.  That  local  rates  on  a  through  line  shall  be  the  same  to  one  con- 
nected road  not  in  the  line  as  the  through  rates  are  to  another  which 
is ;  nor 

4.  That  if  one  compan}-  refuses  to  agree  with  another  owning  a  con- 
nected road  to  form  a  through  line  or  to  do  a  connecting  business 
a  court  of  chancery  may  order  that  such  a  business  be  done  and  fix 
the  terms. 

The  question,  then,  is  whether  these  rights  or  any  of  them  are  im- 
plied either  at  common  law  or  from  the  Constitution. 

At  common  law,  a  carrier  is  not  bound  to  carrj-  except  on  his  own 
line,  and  we  think  it  quite  clear  that  if  he  contracts  to  go  beyond  he 
ma}',  in  the  absence  of  statutory  regulations  to  the  contrar}-,  determine 
for  himself  what  agencies  he  will  emploj'.  His  contract  is  equivalent 
to  an  extension  of  his  lino  for  the  purposes  of  the  contract,  and  if  he 
holds  himself  out  as  a  carrier  beyond  the  line,  so  that  he  may  be  required 
to  carry  in  that  wa}'  for  all  alike,  he  maj'  nevertheless  confine  himself 
in  carrying  to  the  particular  route  he  chooses  to  use.  He  puts  himself 
in  no  worse  position,  by  extending  his  route  with  the  help  of  others, 
than  he  would  occupy  if  the  means  of  transportation  employed  were  al/ 
his  own.  He  certainly  ma}'  select  his  own  agencies  and  his  own  asso- 
ciates for  doing  his  own  work. 

The  Atchison,  Topeka  &  Santa  Fe  Compan}',  as  the  lessee  of  the 
Pueblo  &  Arkansas  Valley  Railroad,  has  the  statutory  right  to  estab- 
lish its  own  stations  and  to  regulate  the  time  and  manner  in  which  it 
will  carry  persons  and  property  and  the  price  to  be  paid  therefor.  As 
to  all  these  matters,  it  is  undoubtedly  subject  to  the  power  of  legisla- 
tive regulation,  but  in  the  absence  of  regulation  it  owes  onl}*  such 
duties  to  the  public,  or  to  individuals,  associations,  or  corporations,  as 
the  common  law,  or  some  custom  having  the  force  of  law,  has  estab- 
lished for  the  government  of  those  in  its  condition.  As  has  already 
been  shown,  the  Constitution  of  Colorado  gave  to  ever}'  railroad  com- 
pany in  the  State  the  right  to  a  mechanical  union  of  its  road  with  that 
of  any  other  company  in  the  State,  but  no  more.  The  legislature  has 
not  seen  fit  to  extend  this  right,  as  it  undoubtedly  may,  and  conse- 
quently the  Denver  &  New  Orleans  Company  comes  to  the  Atchison, 
Topeko  &  Santa  Fe  Company  just  as  any  other  customer  does,  and 


208        ATCH.,   TOP.   A   S.  F.   R.   V.   DENVER  A  NEW   ORLEANS  R. 

with  no  more  rights.  It  has  established  its  juuction  and  provided  itself 
with  the  means  of  transacting  its  business  at  that  place,  but  as  yet  it 
has  no  legislative  authority  to  compel  the  other  company*  to  adopt  that 
station  or  to  establish  an  agency  to  do  business  there.  So  far  as  statu- 
tory regulations  are  concerned,  if  it  wishes  to  use  the  Atchison,  To- 
peka  &  Santa  Fe  road  for  business,  it  must  go  to  the  place  where  that 
company  takes  on  and  lets  off  passengers  or  propert}'  for  others.  It 
has  as  a  railroad  company  no  statutory  or  constitutional  privileges  in 
this  particular  over  other  persons,  associations,  or  corporations.  It 
saw  fit  to  establish  its  junction  at  a  place  away  from  the  station  which 
the  Atchison,  Topeka  &  Santa  F^  Company  had,  in  the  exercise  of  its 
legal  discretion,  located  for  its  own  convenience  and  that  of  the  public. 
It  does  not  now  ask  to  enter  that  station  with  its  tracks  or  to  inter- 
change business  at  that  place,  but  to  compel  the  Atchison,  Topeka  & 
Santa  Fe  Company  to  stop  at  its  station  and  transact  a  connecting 
business  there.  No  statute  requires  that  connected  roads  shall  adopt 
joint  stations,  or  that  one  railroad  company  shall  stop  at  or  make  use 
of  the  station  of  another.  Each  compan}-  in  the  State  has  the  legal 
right  to  locate  its  own  stations,  and  so  far  as  statutory  regulations  are 
concerned,  is  not  required  to  use  any  other. 

A  railroad  compan}'  is  prohibited,  both  by  the  common  law  and  by 
the  Constitution  of  Colorado,  from  discriminating  unreasonably  in  favor 
of  or  against  another  company  seeking  to  do  business  on  its  road  ;  but 
that  does  not  necessarily  imply  that  it  must  stop  at  the  junction  of  one 
and  interchange  business  there,  because  it  has  established  joint  depot 
accommodations  and  provided  facilities  for  doing  a  connecting  business 
with  another  company  at  another  place.  A  station  ma}-  be  established 
for  the  special  accommodation  of  a  particular  customer;  but  we  have 
never  heard  it  claimed  that  every  other  customer  could,  bj-  a  suit  in 
equit}',  in  the  absence  of  a  statutory*  or  contract  right,  compel  the  com- 
pany to  establish  a  like  station  for  his  special  accommodation  at  some 
other  place.  Such  matters  are,  and  always  have  been,  proper  subjects 
for  legislative  consideration,  unless  prevented  b}*  some  charter  con- 
tract ;  but,  as  a  general  rule,  remedies  for  injustice  of  that  kind  can 
only  be  obtained  from  the  legislature.  A  court  of  chancery  is  not,  any 
more  than  is  a  court  of  law,  clothed  with  legislative  power.  It  may 
enforce,  in  its  own  appropriate  way,  the  specific  performance  of  an 
existing  legal  obligation  arising  out  of  contract,  law,  or  usage,  but  it 
cannot  create  the  obligation. 

In  the  present  case,  the  Atchison,  Topeka  &  Santa  F^  and  the  Den- 
ver &  Rio  Grande  Companies  formed  their  business  connection  and 
established  their  junction  or  joint  station  long  before  the  Denver  & 
New  Orleans  road  was  built.  The  Denver  &  New  Orleans  Company 
saw  fit  to  make  its  junction  with  the  Atchison,  Topeka  &  Santa  F^ 
Company  at  a  different  place.  Under  these  circumstances,  to  hold 
that,  if  the  Atchison,  Topeka  &  Santa  Fe  continued  to  stop  at  its  old 
station,  after  the  Denver  &  New  Orleans  was  built,  a  refusal  to  stop 


ATCH.,   TOP.    &   S.    F.    R.   V.   DENVER   &   NEW   ORLEANS   R.       209 

at  the  junction  of  the  Denver  &  New  Orleans,  was  an  unreasonable 
discrimination  as  to  facilities  in  favor  of  the  Denver  &  Rio  Grande 
Company,  and  against  the  Denver  &  New  Orleans,  would  be  in  effect 
to  declare  that  every  railroad  company  which  forces  a  connection  of 
its  road  with  that  of  another  company  has  a  right,  under  the  Constitu- 
tion or  at  the  common  law,  to  require  the  company  with  which  it  con- 
nects to  do  a  connecting  business  at  the  junction,  if  it  does  a  similar 
business  with  any  other  company'  under  any  other  circumstances. 
Such,  we  think,  is  not  the  law.  It  may  be  made  so  by  the  legisla- 
tive department  of  the  government,  but  it  does  not  follow,  as  a  neces- 
sary consequence,  from  the  constitutional  right  of  a  mechanical  union 
of  tracks,  or  the  constitutional  prohibition  against  undue  or  unreason- 
able discrimination  in  facilities. 

This  necessarily  disposes  of  the  question  of  a  continuous  business, 
or  a  through  line  for  passengers  or  freight,  including  through  tickets, 
through  bills  of  lading,  through  checking  of  baggage,  and  the  like. 
Such  a  business  does  not  necessarily'  follow  from  a  connection  of 
tracks.  The  connection  may  enable  the  companies  to  do  such  a  busi- 
ness conveniently  when  it  is  established,  but  it  does  not  of  itself  estab- 
lish the  business.  The  legislature  cannot  take  away  the  right  to  a 
physical  union  of  two  roads,  but  whether  a  connecting  business  shall 
be  done  over  them  after  the  union  is  made  depends  on  legislative  regu- 
lation, or  contract  obligation.  An  interchange  of  cars,  or  the  hauling 
by  one  company  of  the  cars  of  the  other,  implies  a  stop  at  the  junction 
to  make  the  exchange  or  to  take  the  cars.  If  there  need  be  no  stop, 
there  need  be  no  exchange  or  taking  on  of  cars. 

The  only  remaining  questions  are  as  to  the  obligation  of  the  Atchi- 
son, Topeka  &  Santa  Fe  Company  to  carrj^  for  the  Denver  «&  New 
Orleans  when  passengers  go  to  or  freight  is  delivered  at  the  regular 
stations,  and  the  prices  to  be  charged.  As  to  the  obligation  to  carry, 
there  is  no  dispute,  and  we  do  not  understand  it  to  be  claimed  that  car- 
riage has  ever  been  refused  when  applied  for  at  the  proper  place.  The 
controversy,  and  the  only  controversy,  is  about  the  place  and  the  price. 

That  the  price  must  be  reasonable  is  conceded,  and  it  is  no  doubt 
true  that  in  determining  what  is  reasonable  the  prices  charged  for  busi- 
ness coming  from  or  going  to  other  roads  connecting  at  Pueblo  may  be 
taken  into  consideration.  But  the  relation  of  the  Denver  &  New 
Orleans  Company  to  the  Atchison,  Topeka  &  Santa  Fe  is  that  of  a 
Pueblo  customer,  and  it  does  not  necessarily  follow  that  the  price 
which  the  Atchison,  Topeka  &  Santa  Fd  gets  for  transportation  to  and 
from  Pueblo,  on  a  division  of  through  rates  among  the  component  com- 
panies of  a  through  line  to  Denver,  must  settle  the  Pueblo  local  rates. 
It  may  be  that  the  local  rates  to  and  from  Pueblo  are  too  high,  and 
that  they  ought  to  be  reduced,  but  that  is  an  entirely  different  question 
from  a  division  of  through  rates.  There  is  no  complaint  of  a  discrim- 
ination against  the  Denver  &  New  Orleans  Company  in  respect  to  the 
regular  Pueblo  rates ;  neither  is  there  anything  except  the  through 

14 


210        ATCH.,  TOP.   4   S.   F.   R.   V.   DENVEE  4  NEW   ORLEANS   R 

rates  to  show  that  the  local  rates  are  too  high.  The  bill  docs  not  seek 
to  reduce  the  local  rates,  but  only  to  get  this  company  put  into  the 
same  position  as  the  Denver  &  Rio  Grande  on  a  division  of  tiirough 
rates.  This  cannot  be  done  until  it  is  shown  that  the  relative  situa- 
tions of  the  two  companies  with  the  Atchison,  Topeka  &  Santa  Fe, 
both  as  to  the  kind  of  service  and  as  to  the  conditions  under  which  it 
is  to  be  performed,  are  substantially  the  same,  so  that  wiiat  is  reason- 
able for  one  must  necessarily  be  reasonable  for  the  other.  When  a 
business  connection  shall  be  established  between  the  Denver  &  "Sew 
Orleans  Companj-  and  the  Atchison,  Topeka  &  Santa  Fe  at  their  junc- 
tion, and  a  continuous  line  formed,  diflferent  questions  may  arise ;  but 
so  long  as  the  situation  of  the  parties  continues  as  it  is  now,  we  cannot 
sa}'  that,  as  a  matter  of  law,  the  prices  charged  by  the  Atchison,  To- 
peka &  Santa  Fe,  for  the  transportation  of  persons  and  property 
coming  from  or  going  to  the  Denver  &  New  Orleans,  must  necessarily 
be  the  same  as  are  fixed  for  the  continuous  line  over  the  Denver  & 
Rio  Grande.  .  .  . 

All  the  American  cases  to  which  our  attention  has  been  called  bj' 
counsel  relate  either  to  what  amounts  to  undue  discrimination  between 
the  customers  of  a  railroad  company,  or  to  the  power  of  a  court  of 
chancery  to  intei-fere,  if  there  is  such  a  discrimination.  None  of  them 
hold  that,  in  the  absence  of  statutory  direction,  or  a  specific  contract, 
a  company  having  the  power  to  locate  its  own  stopping-places  can  be 
required  by  a  court  of  equity-  to  stop  at  another  railroad  junction  and 
interchange  business,  or  that  it  must  under  all  circumstances  give  one 
connecting  road  the  same  facilities  and  the  same  rates  that  it  does  to 
another  with  which  it  has  entered  into  special  contract  relations  for  a 
continuous  through  line  and  arranged  facilities  accordingl}'.  The  cases 
are  all  instructive  in  their  analogies,  but  their  facts  are  different  from 
those  we  have  now  to  consider. 

We  have  not  referred  specially  to  the  tripartite  agreement  or  its  pro- 
visions, because,  in  our  opinion,  it  has  nothing  to  do  with  this  case  as 
it  is  now  presented.  The  question  here  is  whether  the  Denver  &  New 
Orleans  Company  would  have  the  right  to  the  relief  it  asks  if  there 
were  no  such  contract,  not  whether  the  contract,  if  it  exists,  will  be  a 
bar  to  such  a  right.  The  real  question  in  the  case,  as  it  now  comes 
before  us,  is  whether  the  relief  required  is  legislative  in  its  character 
or  judicial.  We  think  it  is  legislative,  and  that  upon  the  existing  facts 
a  court  of  chancery  can  afford  no  remedy. 

The  decree  of  the  Circuit  Court  is  reversed,  and  the  cause  remanded 
with  direction  to  Dismiss  the  bill  without  prejudice. 


ILWACO  R.   4  N.   CO.   V.  OREGON   SHORT   LINE   &  UTAH  N.   R.      211 


ILWACO  RAILWAY  &  NAVIGATION  COMPANY  v.  OREGON 
SHORT  LINE  &  UTAH  NORTHERN  RAILWAY. 

Circuit  Court  of  Appeals,  Ninth  Circuit,  1893. 

[57  Fed.  673.] 

McKenna,  Circuit  Judge.^  The  plaintiff  contends  that  defendant, 
by  preventing  it  from  landing  its  boats  at  a  wharf  owned  and  used 
by  defendant,  discriminates  against  it,  contrary  to  section  3  of  the 
Interstate  Commerce  Act. 

The  facts  are  as  follows :  — 

That  'prior  to  the  month  of  August,  1888,  the  defendant  was 
named  the  Ilwaco  Steam  Navigation  Company,  but  in  that  month  it 
filed  supplemental  articles  of  incorporation,  changing  its  name  to 
Ilwaco  Railway  &  Navigation  Company,  and  proceeded  to  construct 
a  line  of  railway  from  a  point  at  or  near  the  town  of  Ilwaco  on  the 
Pacific  Ocean,  in  the  State  of  Washington,  to  a  point  on  the  navi- 
gable waters  of  Shoal  Water  Baj',  in  Pacific  County.  That  the 
construction  of  said  railway  was  commenced  before,  but  completed 
after,  the  filing  of  said  supplemental  articles.  That  prior  to  the 
construction  of  said  railroad  line  the  defendant  owned  and  operated 
a  line  of  steamboats  between  the  town  of  Astoria,  Oi\,  and  the  town 
of  Ilwaco.  That  the  shores  of  the  Pacific  Ocean  in  that  vicinity  were 
popular  summer  resorts  during  the  months  of  July  and  August  and 
the  first  week  of  September.  That  prior  to  1888  the  Oregon  Railway 
&  Navigation  Company  owned  the  boats  and  line  between  Astoria 
and  Portland,  Or.,  which  plaintiff  now  owns,  and  carried  passengers 
from  Portland  to  Astoria,  which  were  then  transferred  to  plaintiff's 
boats,  and  carried  to  Ilwaco,  from  whence  they  went  to  the  ocean 
beach  in  wagons.  That  in  the  summer  season  of  the  years  1888, 
1889,  1890,  and  1891  the  Oregon  Railway  &  Navigation  Company 
asked  and  obtained  permission  to  land  its  passengers  on  the  wharf 
at  Ilwaco,  paying  a  compensation  therefor.  That  complainant  only 
ran  its  boats  during  said  summer  months,  and  only  while  people 
were  travelling  to  said  summer  resorts.  Said  town  of  Portland,  Or., 
is  situated  on  the  Willamette  River,  about  100  miles  inland,  easterly 
from  the  said  city  of  Astoria,  which  latter  city  is  situated  on  the  left 
bank  of  the  Columbia  River,  and  about  12  miles  inland  from  the 
ocean ;  and  the  town  of  Ilwaco  is  situated  on  the  right  bank  of  the 
Columbia  River,  at  a  part  thereof  known  as  "  Baker's  Bay,"  and 
about  15  miles  distant,  in  a  northwesterly  direction,  from  said  city 
of  Astoria.  That  in  the  year  1892  complainant  d'esired  the  same 
privileges,  but  respondent  refused.  .  .  . 

The  defendant  company  was  organized  for  the  purpose  of  construct- 
ing a  transportation  route  from  Astoria,  Or.,  to  Shoal  Water  Bay, 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


212      ILWACO   R.   &   N.   CO.   V.   OREGON   SHORT  LINE   4  UTAH   N.    K. 

Wash.  Its  means  of  transportation  are  steamboats  and  a  railroad. 
Tlie  wharf  at  Ilwaco  makes  the  connection  between  them,  and  the 
continuity  of  the  route.  The  act  contemplates,  we  think,  indepen- 
dent carriers,  capable  of  mutual  relations,  and  capable  of  being 
objects  of  favor  or  prejudice.  There  must  be  at  least  two  other 
carriers  besides  the  offending  one.  For  a  carrier  to  prefer  itself  in  its 
own  proper  business  is  not  the  discrimination  which  is  condemned. 

We  do  not  think  that  the  cases  cited  by  appellee  militate  with 
these  views,  nor  do  they  justify  a  railroad  company  combining  with 
its  proper  business  a  business  not  cognate  to  it,  and  discriminating 
in  favor  of  itself,  as  it  might  in  counsel's  illustration  of  a  combina- 
tion of  a  railroad  company  with  the  Standard  Oil  Company,  or  as 
illustrated  in  the  cases  of  Baxendale  i\  Great  Western  Ry.  Co.,  1 
Railway  &  Canal  Traffic  Cas.  202;  Same  v.  London  &  S.  W.  Ry.  Co., 
Id.  231 ;  and  Parkinson  v.  Railway  Co.,  Id.  280.  In  all  these 
cases  the  railroad  company  attempted  to  discriminate  in  favor  of 
itself  as  carrier,  separate  from  its  capacity  as  a  railway  carrier.  We 
tind  no  difficulty  of  concurring  in  these  cases,  and  distinguishing 
them  from  the  case  at  bar.  It  was  not  to  engage  in  the  business  of 
drayman,  as  Cockburn,  C.  J.,  indicates  in  the  first  case,  that  great 
powers  have  been  given  to  railway  companies,  and,  if  permitted  to 
be  so  used,  might  indeed  be  converted  into  a  means  of  very  grievous 
oppression.  The  principle  of  these  cases  does  not  extend  to  boats 
owned  by  railroads,  as  a  part  of  a  continuous  line.  Nor  do  we 
think  the  case,  Indian  River  Steamboat  Co.  v.  East  Coast  Transp. 
Co.  (Fla.),  10  South.  Rep.  480,  sustains  complainant.  It  was  a  case 
of  discrimination.  The  action  was  between  two  competing  steam- 
boat companies,  in  favor  of  one  of  which  a  railroad  company  had 
discriminated  by  leasing  its  wharf.  Both  companies  were  indepen- 
dent of  the  railroad,  and  both  connecting  lines  with  it.  But  the 
court  recognized  the  right  of  the  railroad  company  and  the  Indian 
River  Company  to  build  and  maintain  a  wharf,  as  incidental  to  their 
business,  saying:  "  If  either  company  should  erect  a  dock  or  wharf 
for  its  private  use,  we  know  of  no  law  to  prohibit  it."  Page  492. 
The  steamboats  were  competing  lines,  and  the  statutes  of  Florida 
regulating  railroads  provided  that  no  common  carriers  subject  to  the 
provisions  should  "  make  any  unjust  discrimination  in  the  receiving 
of  freight  from  or  the  delivery  of  freight  to  any  competing  lines  of 
steamboats  in  this  State."  The  decision,  therefore,  was  sustained  by 
the  laws  of  the  State.  The  reasoning  of  the  court,  beyond  this,  seems 
to  be  in  conflict  with  the  Express  Cases  decided  by  the  Supreme 
Court  of  the  United  States.     117  U.  S.  29. 

It  is  not  clear  what  complainant  claims  from  the  second  sub- 
division of  section  3,  besides  what  it  claims  from  the  first  subdivis- 
ion.    The  second  subdivision  is  as  follows:  — 

*'  Every  common  carrier  subject  to  the  provisions  of  this  act  shall, 
according  to  their  respective  powers,  afford  all  reasonable,  proper, 


LITTLE  ROCK  4  MEMPHIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  E.      213 

and  equal  facilities  for  the  interchange  of  traffic  between  their  re- 
spective lines,  and  for  the  receiving,  forwarding,  and  delivering  of 
passengers  and  property  to  and  from  their  several  lines  and  those 
connecting  therewith,  and  shall  not  discriminate  in  their  rates  and 
charges  between  such  connecting  lines ;  but  this  shall  not  be  construed 
as  requiring  any  such  common  carrier  to  give  the  use  of  its  tracks  or 
terminal  facilities  to  another  carrier  engaged  in  like  business." 

The  contention  of  complainant  is  not  that  defendant's  facilities 
are  inadequate,  but  that  it  is  excluded  from  them.  The  exclusion, 
however,  only  consists  in  the  prevention  of  the  landing  of  its  boats 
at  defendant's  wharf.  We  have  probably  said  enough  to  indicate  our 
views  of  this,  but  we  may  add  that  the  wharf  does  not  seem  to  be  a 
public  station.  It  is  a  convenience,  only,  in  connecting  its  railroads 
and  boats;  the  general  station  being  at  Ilwaco,  where  ample  facili- 
ties exist. 

Judgment  reversed,  and  cause  remanded  for  further  proceedings. 


LITTLE  ROCK   &   MEMPHIS   RAILROAD  v.    ST.    LOUIS 
SOUTHWESTERN   RAILWAY. 

Circuit  Court  of  Appeals,  Eighth  Circuit,  1894. 

[63  Fed.  775.] 

Thayer,  Circuit  Judge,  delivered  the  opinion  of  the  court. 

It  will  be  observed  that  the  sole  question  in  the  cases  filed  against 
the  St.  Louis,  Iron  Mountain,  &  Southern  Railway  Company  concerns 
the  right  of  that  company  to  require  the  prepayment  of  freight 
charges  on  all  property  tendered  to  it  for  transportation  at  Little 
Rock  by  the  Little  Rock  &  Memphis  Railroad  Company,  while  it 
pursues  a  different  practice  with  respect  to  freight  received  from  other 
shippers  at  that  station.  At  common  law  a  railroad  corporation 
has  an  undoubted  right  to  require  the  prepayment  of  freight  charges 
by  all  its  customers,  or  some  of  them,  as  it  may  think  best.  It  has 
the  same  right  as  any  other  individual  or  corporation  to  exact  pay- 
ment for  a  service  before  it  is  rendered,  or  to  extend  credit.  Oregon 
Short  Line  &  U.  N.  Ry.  Co.  v.  Northern  Pac.  R.  Co.,  51  Fed.  465, 
472.  Usually,  no  doubt,  railroad  companies  find  it  to  their  interest, 
and  most  convenient,  to  collect  charges  from  the  consignee;  but  we 
cannot  doubt  their  right  to  demand  a  reasonable  compensation  in 
advance  for  a  proposed  service,  if  they  see  fit  to  demand  it.  This 
common  law  right  of  requiring  payment  in  advance  of  some  customers, 
and  of  extending  credit  to  others,  has  not  been  taken  away  by  the 
Interstate  Commerce  Law,  unless  it  is  taken  away  indirectly  by  the 
inhibition  contained  in  the  third  section  of  the  act,  which  declares 
that  an  interstate  carrier  shall  not  "  subject  any  particular  person, 


214      LITTLE  BOCK  &  MEMPHIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  B. 

company,  corporation,  or  locality  ...  to  any  andue  or  unreasonable 
.  .  .  disadvantage  in  any  respect  whatever."  This  prohibition  is 
very  broad,  it  is  true,  but  it  is  materially  qualified  and  restricted  by 
the  words  "  undue  or  unreasonable."  One  person  or  corporation  may 
be  lawfully  subjected  to  some  disadvantage  in  comparison  with  others, 
provided  it  is  not  an  undue  or  unreasonable  disadvantage.  In  view 
of  the  fact  that  all  persons  and  corporations  are  entitled  at  common 
law  to  determine  for  themselves,  and  on  considerations  that  are  satis- 
factory to  themselves,  for  whom  they  will  render  services  on  credit, 
we  are  not  prepared  to  hold  that  an  interstate  carrier  subjects  another 
carrier  to  an  unreasonable  or  undue  disadvantage  because  it  exacts  of 
that  carrier  the  prepayment  of  freight  on  all  property  received  from 
it  at  a  given  station,  while  it  does  not  require  charges  to  be  paid  in 
advance  on  freight  received  from  other  individuals  and  corporations 
at  such  station.  So  far  as  we  are  aware,  no  complaint  had  been  made 
of  abuses  of  this  character  at  the  time  the  Interstate  Commerce  Law 
was  enacted,  and  it  may  be  inferred  that  the  particular  wrong  com- 
plained of  was  not  within  the  special  contemplation  of  Congress. 
This  being  so,  the  general  words  of  the  statute  ought  not  to  be  given 
a  scope  which  will  deprive  the  defendant  company  of  an  undoubted 
common  law  right,  which  all  other  individuals  and  corporations  are 
still  privileged  to  exercise,  and  ordinarily  do  exercise.  It  is  most 
probable  that  self-interest  —  the  natural  desire  of  all  carriers  to  secure 
as  much  patronage  as  possible  —  will  prevent  this  species  of  dis- 
crimination from  becoming  a  public  grievance  so  far  as  individual 
shippers  are  concerned;  and  it  is  desirable  that  the  courts  should 
interfere  as  little  as  possible  with  those  business  rivalries  existing 
between  railroad  corporations  themselves,  which  are  not  productive 
of  any  serious  inconvenience  to  shippers.  We  think,  therefore,  that 
no  error  was  committed  in  entering  the  judgment  and  decree  in  favor 
of  the  St.  Louis,  Iron  Mountain,  &  Southern  Railway  Company. 

The  complaint  preferred  against  the  other  companies,  to  wit,  the 
St.  Louis  Southwestern  and  the  Little  Rock  &  Ft.  Smith  Railway 
Companies,  is  somewhat  different.  It  consists  in  the  alleged  refusal 
of  those  companies,  —  first,  to  honor  through  tickets  and  through 
bills  of  lading  issued  by  the  complainant  company,  or  to  enter  into 
arrangements  with  it  for  through  billing  or  through  rating;  and,  sec- 
ondly, in  the  alleged  refusal  of  these  companies  to  accept  loaded  cars 
coming  from  the  Little  Rock  &  Memphis  Railroad,  and  in  their 
action  in  requiring  freight  to  be  rebilled  and  reloaded  at  the  two 
connecting  points,  to  wit,  Brinkley  and  Little  Rock. 

Before  discussing  the  precise  issue  which  arises  upon  this  record  it 
will  be  well  to  restate  one  or  two  propositions  that  are  supported  b}' 
high  authority  as  well  as  persuasive  reasons,  and  which  do  not  seem 
to  be  seriously  controverted  oven  by  the  complainant's  counsel.  In 
the  first  place,  the  interstate  commerce  law  does  not  require  an  inter- 
state carrier  to  treat  all  other  connecting  carriers  in  precisely  the 


LITTLE  ROCK  &  MEMPHIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  R.       215 

same  manner,  without  reference  to  its  own  interests.  Some  play  is 
given  by  the  act  to  self-interest.  The  inhibitions  of  the  third  sec- 
tion of  the  law,  against  giving  preferences  or  advantages,  are  aimed 
at  those  which  are  "undue  or  unreasonable";  and  even  that  clause 
which  requires  carriers  "to  afford  all  reasonable,  proper,  and  equaJ 
facilities  for  the  interchange  of  traffic "  does  not  require  that  such 
"equal  facilities"  shall  be  afforded  under  dissimilar  circumstances 
and  conditions.  Moreover,  the  direction  "to  afford  equal  facilities 
for  an  interchange  of  traffic  "  is  controlled  and  limited  by  the  proviso 
that  this  clause  "shall  not  be  construed  as  requiring  a  carrier  to  give 
the  use  of  its  tracks  or  terminal  facilities  to  another  carrier."  Ken- 
tucky &  I.  Bridge  Co.  v.  Louisville  &  N.  R.  Co.,  37  Fed.  571;  Ore- 
gon Short  Line  &  U.  N.  Ry.  Co.  v.  Northern  Pac.  R.  Co.,  51  Fed. 
465,  473.  In  the  second  place,  it  has  been  held  that  neither  by  the 
common  law  nor  by  the  interstate  commerce  law  have  the  national 
courts  been  vested  with  jurisdiction  to  compel  interstate  carriers  to 
enter  into  arrangements  or  agreements  with  each  other  for  the  through 
billing  of  freight,  and  for  joint  through  rates.  Agreements  of  this 
nature,  it  is  said,  under  existing  laws,  depend  upon  the  voluntary 
action  of  the  parties,  and  cannot  be  enforced  by  judicial  proceedings 
without  additional  legislation.  Little  Rock  &  M.  R.  Co.  v.  East 
Tennessee,  V.  &  G.  R.  Co.,  3  Interst.  Commerce  Com.  R.  1,  16,  17; 
Little  Rock  &  M.  R.  Co.  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  41  Fed. 
559,  and  cases  there  cited  by  Judge  Caldwell.  Furthermore,  it  has 
been  ruled  by  Mr,  Justice  Field  in  the  case  of  the  Oregon  Short  Line 
&  U.  N.  Ry.  Co.  V.  Northern  Pac.  R.  Co.,  51  Fed.  465,  474,  that  the 
third  section  of  the  Interstate  Commerce  Act  does  not  require  an 
interstate  carrier  to  receive  freight  in  the  cars  in  which  it  is  tendered 
by  a  connecting  carrier,  and  to  transport  it  in  such  cars,  paying  a 
mileage  rate  thereon,  when  it  has  cars  of  its  own  that  are  available 
for  the  service,  and  the  freight  will  not  be  injured  by  transfer.  It 
should  be  remarked  in  this  connection  that  the  bills  on  file  in  the 
present  cases,  as  well  as  the  petitions  in  the  law  cases,  fail  to  dis- 
close whether  the  offending  companies  have  refused  to  receive  freight 
in  the  cars  in  which  it  was  tendered  to  them,  even  when  it  would 
injure  the  freight  to  transfer  it,  or  when  they  had  no  cars  of  their 
own  that  were  immediately  available  to  forward  it  to  its  destination. 
Neither  do  the  bills  or  the  petitions  disclose  whether,  in  tendering 
freight  in  cars  to  be  forwarded,  the  complainant  company  demanded 
the  payment  of  the  usual  wheelage  on  the  cars,  or  tendered  the  use  of 
the  same  free,  for  the  purpose  of  forwarding  the  freight  to  its  desti- 
nation. The  allegations  of  a  refusal  to  receive  freight  in  cars  are 
exceedingly  general,  and  convey  no  information  on  either  of  the 
points  last  mentioned. 

As  we  have  before  remarked,  the  several  propositions  above  stated 
do  not  seem  to  be  seriously  questioned.  It  is  urged,  however,  in 
substance,  that  although  the  court  may  be  powerless  to  make  and 


216      LITTLE  ROCK  A  MEMPHIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  R 

enforce  agreements  between  carriers  for  through  billing  and  through 
rating,  and  for  the  use  of  each  other's  cars,  tracks,  and  terminal 
facilities,  yet  that  when  a  carrier,  of  its  own  volition,  enters  into  an 
agreement  of  that  nature  with  another  connecting  carrier,  the  law 
commands  it  to  extend  "  equal  facilities  "  to  all  other  connecting 
carriers,  if  the  physical  connection  is  made  at  or  about  the  same 
place,  and  the  physical  facilities  for  an  interchange  of  traffic  are  the 
same,  and  that  this  latter  duty  the  courts  may  and  should  enforce. 
It  will  be  observed  that  the  proposition  contended  for,  if  sound,  will 
enable  the  courts  to  do  indirectly  what  it  is  conceded  they  cannot  do 
directly.  It  authorizes  them  to  put  in  force  between  two  carriers  an 
arrangement  for  an  interchange  of  traffic  that  may  be  of  great  finan- 
cial importance  to  both,  which  could  neither  be  established  nor  en- 
forced by  judicial  decree,  except  for  the  fact  that  one  of  the  parties 
had  previously  seen  fit  to  make  a  similar  arrangement  with  some 
other  connecting  carrier.  It  may  be,  also,  that  the  arrangement  thus 
forced  upon  the  carrier  would  be  one  in  which  the  public  at  large 
have  no  particular  concern,  because  the  equal  facilities  demanded  by 
the  complainant  carrier  would  be  of  no  material  advantage  to  the 
general  public,  and  would  only  be  a  benefit  to  the  complainant. 

Another  necessary  result  of  the  doctrine  contended  for  is  that  it 
deprives  railway  carriers,  in  a  great  measure,  of  the  management  and 
control  of  their  own  property,  by  destroying  their  right  to  determine 
for  themselves  what  contracts  and  traffic  arrangements  with  connect- 
ing carriers  are  desirable  and  what  are  undesirable.  There  ought  to 
be  a  clear  authority  found  in  the  statute  for  depriving  a  carrier  of 
this  important  right  before  the  authority  is  exercised,  for,  when 
questions  of  that  nature  have  to  be  solved,  a  great  variety  of  com- 
plex considerations  will  present  themselves,  some  of  which  can 
neither  be  foreseen  nor  stated.  A  railroad  having  equal  facilities  at 
a  given  point  for  forming  a  physical  connection  with  a  number  of 
connecting  carriers  might  find  it  exceedingly  beneficial  to  enter  into 
an  arrangement  with  one  of  them,  having  a  long  line  and  important 
connections,  for  through  billing  and  rating,  and  for  the  use  of  each 
other's  cars  and  terminal  facilities,  while  it  would  find  it  exceedingly 
undesirable  and  unprofitable  to  enter  into  a  similar  arrangement  with 
a  shorter  road,  which  could  offer  nothing  in  return.  Or  the  case 
might  be  exactly  the  reverse.  The  shorter,  and  at  the  time  the  less 
important  road,  might  be  able  to  present  sound  business  reasons 
which  would  make  an  arrangement  with  it,  of  the  kind  above  indi- 
cated, more  desirable  than  with  the  longer  line.  Furthermore,  if  it 
be  the  law  that  an  arrangement  for  through  billing  and  rating  with 
one  carrier  necessitates  a  like  arrangement  with  others,  this  might 
be  a  controlling  influence  in  determining  a  railway  company  to  refuse 
to  enter  into  such  an  arrangement  with  any  connecting  carrier.  In 
view  of  these  considerations,  we  are  unable  to  adopt  a  construction 
of  the  Interstate  Commerce  Act  which  will  practically  compel  a  car* 


LITTLE  ROCK  &  MEMPHIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  R.      217 

rier,  when  it  enters  into  an  arrangement  with  one  carrier  for  through 
billing  and  rating  and  for  the  use  of  its  tracks  and  terminals,  to 
make  the  same  arrangement  with  all  other  connecting  carriers,  if  the 
physical  facilities  for  an  interchange  of  traffic  are  the  same,  and  to 
do  this  without  reference  to  the  question  whether  the  enforced 
arrangement  is  or  is  not  of  any  material  advantage  to  the  public. 

In  two  of  the  cases  heretofore  cited  (Kentucky  &  I.  Bridge  Co.  v. 
Louisville  &  N.  R.  Co.,  and  Oregon  Short  Line  &  U.  N.  Ry.  Co.  v. 
Northern  Pac.  R.  Co.),  it  was  held  that  the  charge  of  undue  or  unrea- 
sonable discrimination  cannot  be  predicated  on  the  fact  that  a  rail- 
road company  allows  one  connecting  carrier  to  make  a  certain  use  of 
its  tracks  or  terminals,  which  it  does  not  concede  to  another.  This 
conclusion  was  reached  as  the  necessary  result  of  the  final -clause  of 
the  third  section  of  the  Interstate  Commerce  Law,  above  quoted,  to 
the  effect  that  the  second  paragraph  of  the  third  section  shall  not  be 
so  construed  as  to  require  a  carrier  to  give  the  use  of  its  tracks  or 
terminals  to  another  company.  Railroads  are  thus  left  by  the  com- 
merce act  to  exercise  practically  as  full  control  over  their  tracks  and 
terminals  with  reference  to  other  carriers  as  they  exercised  at  com- 
mon law.  The  language  of  Mr.  Justice  Field  in  that  behalf  was 
as  follows :  — 

"  It  follows  from  this  .  .  .  that  a  common  carrier  is  left  free  to 
enter  into  arrangements  for  the  use  of  its  tracks  or  terminal  facili- 
ties, with  one  or  more  connecting  lines,  without  subjecting  itself  to 
the  charge  of  giving  undue  or  unreasonable  preferences  or  advan- 
tages to  such  lines,  or  of  unlawfully  discriminating  against  other  car- 
riers. In  making  arrangements  for  such  use  by  other  companies,  a 
common  carrier  will  be  governed  by  considerations  of  what  is  best 
for  its  own  interests.  The  act  does  not  purport  to  divest  the  railway 
carrier  of  its  exclusive  right  to  control  its  own  affairs,  except  in  the 
specific  particulars  indicated."     51  Fed.  474,  475. 

Furthermore,  it  is  the  settled  construction  of  the  act,  as  we  have 
before  remarked,  that  it  does  not  make  it  obligatory  upon  connecting 
carriers  to  enter  into  traffic  arrangements  for  through  billing  and  rat- 
ing either  as  to  passenger  or  freight  traffic.  This  conclusion  has 
been  reached  by  all  of  the  tribunals  who  have  had  occasion  to  con- 
sider the  subject,  and  it  is  based  on  the  fact  that,  in  enacting  the 
commerce  act.  Congress  did  not  see  fit  to  adopt  that  provision  of  the 
English  Railway  and  Canal  Traffic  Act,  passed  in  1873,  which  ex- 
pressly empowered  the  English  commissioners  to  compel  connecting 
carriers  to  put  in  force  arrangements  for  through  billing  and  through 
rating  when  thej'  deemed  it  to  the  interest  of  the  public  that  such 
arrangements  should  be  made.  Little  Rock  &  M.  R.  Co.  v.  East 
Tennessee,  V.  &  G.  R.  Co.,  3  Interst.  Commerce  Com.  R.,  1,  9,  10; 
Kentucky  &  I.  Bridge  Co.  v.  Louisville  &  N.  R.  Co.,  37  Fed.  567, 
630,  631.  See  also  the  second  annual  report  of  the  Interstate  Com- 
merce Commission  (2  Interst.  Commerce  Com.  R.,  510,  511).     In  th* 


218  JOEST  X.   CLARENDON   &   ROSEDALE  PACKET  CO. 


JOEST  t.  CLARENDON  &  ROSEDALE  PACKET  CO. 

Supreme  Court  of  Arkansas,  1916. 

[122  Ark.  353.] 

Hart,  J.  (after  stating  the  facts).  (1)  It  is  first  insisted  by  counsel 
for  the  defendant  that  he  was  not  a  common  carrier.  The  evidence, 
however,  shows  that  he  was  operating  an  incUne  for  hire  at  the  time 
the  rice  was  lost  and  that  he  undertook  to  carry  the  cargoes  of  all 
vessels  pFying  the  river  up  the  incline  to  the  cars  of  the  railroad  com- 
pany. This  made  him  a  common  carrier.  Arkadelphia  Milling  Co. 
t.  Smoker  Merchandise  Company,  100  Ark.  44. 

(2)  The  shipment  in  question  was  an  interstate  one.  The  packet 
company  was  the  initial  carrier.  The  undisputed  evidence  shows  that 
the  rice  became  worthless  when  it  fell  into  the  river  and  the  initial 
carrier  paid  to  the  shipper  the  value  of  the  rice.  It  had  a  right  then 
to  recover  from  the  connecting  carrier  the  amount  of  damage  it  had 
been  required  to  pay  the  shipper  by  reason  of  the  negligence  of  the 
connecting  carrier.  K.  C.  &  Mfs.  Ry.  Co.  v.  N.  Y.  Central  &  Hudson 
River  Rd.  Co.,  110  Ark.  612;  Atlantic  Coast  Line  Rd.  Co.  v.  River- 
side Mills,  219  U.  S.  186. 

(3)  It  was  the  contention  of  the  defendant  that  he  gave  his  engi- 
neer instructions  not  to  load  more  than  fifty  sacks  of  rice  on  one  car 
at  any  one  time  and  that  in  disregard  of  these  instructions  the  plaintiff 
placed  96  sacks  of  rice  on  one  of  the  incline  cars  and  that  the  over- 
loading of  the  car  caused  the  loss.  On  this  phase  of  the  case  the 
court  instructed  the  jury  that  if  the  plaintiff  placed  96  sacks  of  rice 
on  one  of  the  incline  cars  of  the  defendant  and  that  if  they  further 
found  that  this  was  in  violation  of  the  instructions  of  the  defendant, 
and  that  the  overloading  of  the  car  was  the  cause  or  one  of  the  causes 
of  the  loss  of  the  rice,  that  they  should  find  for  the  defendant. 


FRAZIER  V.   NEW  YORK,   NEW  HAVEN   &   HARTFORD   R.   R.   CO.      219 


FRAZIER  V.  NEW  YORK,  NEW  HAVEN  &  HARTFORD 
RAILROAD  COMPANY. 

Supreme  Judicial  Court  of  Massachusetts,  1902. 

[180  Mass.  427.1] 

Tort  for  injuries  caused  by  the  plaintiff  stumbling  over  a  wooden 
platform  about  sixteen  feet  square  raised  from  four  to  eight  inches 
above  the  concrete  floor  of  the  station  of  the  Boston  Terminal  Com- 
pany in  Boston  after  the  plaintiff  had  alighted  from  a  train  of  the  de- 
fendant and  was  passing  through  that  station  on  her  way  to  the  street. 

LoRiNG,  J.  This  case  does  not  come  within  the  rule  that  a  railroad 
corporation,  which  voluntarily  uses  the  station  of  another  railroad  as 
its  terminal  station  without  reserving  to  itself  any  control  over  it,  is 
liable  for  an  accident  which  happens  to  one  of  its  passengers  within 
the  limits  of  the  station.  In  this  case  the  defendant  was  compelled  by 
the  legislature  to  "use"  this  union  station,  which  is  the  property  of 
another  corporation,  and  in  the  control  of  that  other  corporation;  it 
was  a  stockholder,  and  as  such  had  a  vote  as  to  the  conduct  of  the 
other  corporation,  but  that  did  not  make  it  liable  for  the  acts  of  the 
corporation;  it  could  appoint  one  of  the  trustees,  but  that  does  not 
make  the  acts  of  the  corporation  its  acts;  it  could  apply  to  the  railroad 
commissioners  to  have  the  regulations  governing  the  use  of  the  station 
changed,  but  so  could  the  mayor  of  the  city  of  Boston;  that  did  not 
make  either  one  or  the  other  liable  for  the  negligence  of  the  corpora- 
tion. The  provision  that  it  shall  "use"  the  station  would  have  been 
significant  had  any  option  been  given  to  the  defendant  railroad;  but 
when  the  defendant  railroad  was  compelled  to  use  a  union  station  owned 
and  operated  by  a  separate  corporation,  in  the  opinion  of  a  majority 
of  the  court  it  was  intended  that  it  should  deliver  its  passengers  to  the 
care  of  the  owner  of  the  union  station,  and  that  however  it  may  be 
in  case  an  accident  occurs  while  the  defendant's  trains  are  being  drawTi 
by  the  defendant  over  the  tracks  of  the  Terminal  Company,  the  de- 
fendant's liabihty  to  the  plaintiff  is  at  an  end  when  the  passenger 
alights  in  safety  from  its  cars  on  to  the  platform  of  the  station  of  the 
Terminal  Company.  The  relation  between  the  five  railroad  companies 
and  the  Terminal  Company  is  virtually  that  between  connecting 
railroads. 

*  Only  an  extract  is  printed. — Ed. 


220  JENCKS  V.   COLEMAN. 

CHAPTER  IV. 

EXCUSES  FOR   REFUSING   SERVICE. 


LANNING  V.  SUSSEX  RAILROAD  COMPANY. 
Essex  Circuit,  New  Jersrt,  1877. 

[1  New  Jersey  Law  Journal,  21.] 

The  plaintiff,  a  huxter,  who  brought  up  produce  throughout  the 
country,  and  shipped  it  to  the  Newark  market,  had  given  offence  to  the 
station  agent  and  superintendent  of  the  defendants'  road,  by  personal 
disputes  and  also  by  reason  of  several  suits  which  were  pending.  This 
led  the  superintendent  to  instruct  the  station  agent  to  refuse  to  ship 
any  merchandise  for  the  plaintiff  from  Huntsville  to  Newark. 

Dkpue,  J.,  charged  the  jnr3*:  That  the  defendants  were  common  car- 
riers ;  and  as  such  were  bound  to  receive  all  merchandise  offered  them 
for  shipment,  unless  the  peculiar  condition  or  character  of  the  goods 
offered  was  such  as  to  impose  a  hazardous  undertaking ;  in  other  words, 
the  objection  to  be  valid  must  arise  out  of  the  goods  and  not  the  shipper. 
That  the  defendants  under  the  evidence  in  the  cause  had  so  conducted 
themselves  towards  the  plaintiff,  as  to  give  the  plaintiff  a  right  of  action 
against  them.  That  evidence  offered  b}'  the  defence  of  certain  suits 
pending  between  the  parties,  numbering  some  eight  or  ten,  was  rejected, 
because  it  was  offered  for  the  purpose  of  showing  a  personal  feeling 
between  the  parties.  That  the  plaintiff  was  entitled  to  recover  the  value 
of  the  perishable  goods  left  at  the  station,  if  he  left  them  there  believ- 
ing defendants  would  ship  them  as  he  had  directed ;  but  if  he  left  them 
there  to  impose  a  liability  on  defendants,  and  knew  the  goods  would  be 
lost,  he  could  not  recover  them.  That  if  plaintiff  was  obliged  to  carry 
his  goods  to  another  station,  through  the  action  of  the  defendants,  he 
should  be  compensated  for  such  additional  trouble  and  expense.  That 
if  the  plaintiff's  general  business  was  injured  b}-  the  act  of  the  defend- 
ants in  refusing  to  ship  for  him  from  said  station,  he  might  recover  for 
such  general  damage,  and  the  damages  need  not  be  confined  to  the 
business  done  by  the  plaintiff  at  that  particular  station ;  the  principle 
being,  that  the  defendants  should  be  held  liable  for  all  damages  of 
which  they  were  the  immediate  or  proximate  cause. 


JENCKS  V.  COLEMAN. 
CiBCUiT  CouBT  OF  THE  United  States,  1835. 

[2  Sum.  221.] 


JENCKS   V.   COLEMAN.  221 

The  facts,  as  the}'  appeared  at  the  trial,  were  substantially  as  follow : 
That  the  plaintiff  was  the  agent  of  the  Tremont  line  of  stages,  running 
between  Providence  and  Boston ;  that  his  object  was  to  take  passage 
in  the  boat  to  Newport,  and  then  go  on  board  the  steamboat  President, 
on  her  passage  from  New  York  to  Providence,  on  the  next  morning, 
for  tlie  purpose  of  soliciting  passengers  for  the  Tremont  line  of  stages 
for  Boston.  This  the  proprietors  of  the  President  and  Benjamin  Frank- 
lin had  prohibited,  and  had  given  notice  that  they  would  not  permit 
agents  of  that  line  of  stages  to  take  passage  in  their  boats  for  that 
purpose.  The  reason  assigned  for  such  prohibition  was,  that  it  was 
important  for  the  proprietors  of  the  steamboats,  that  the  passengers 
from  their  boats,  for  Boston,  should  find,  at  all  times,  on  their  arrival 
at  Providence,  an  immediate  and  expeditious  passage  to  Boston.  To 
insure  this  object,  the  Citizens'  Coach  Company  had  contracted  with 
the  steamboat  proprietors  to  carry  all  the  passengers,  who  wished  to 
go,  in  good  carriages,  at  reasonable  expedition  and  prices ;  and  the 
commanders  of  the  steamboats  were  to  receive  the  fare,  and  make  out 
way-bills  of  the  passengers,  for  the  Citizens'  Coach  Compan}'.  This 
the}'  continued  to  perform.  And,  in  order  to  counteract  the  effect  of 
this  contract,  —  which  had  been  offered  the  Tremont  line,  and  de- 
clined, —  that  line  placed  an  agent  on  board  the  boats,  to  solicit 
passengers  for  their  coaches ;  and,  on  being  complained  to  by  the 
Citizens'  Coach  Compan}-,  the  proprietors  of  the  steamboats  interdicted 
such  agents  from  coming  on  board  their  boats,  and  in  this  instance, 
refused  to  permit  the  plaintiff  to  take  passage  in  the  boat  for  Newport, 
though  he  tendered  the  customary  fare. 

The  cause  was  argued  by  R.  W.  Greene  and  Daniel  Webster  for  the 
plaintiff,  and  by  Rivers  and  Whipple  for  the  defendants. 

For  the  plaintiff  it  was  contended,  that  steamboat  proprietors  were 
common-carriers, —  and  ever}'  person,  conducting  himself  with  propriety, 
had  a  right  to  be  carried,  unless  he  had  forfeited  that  right. 

The  plaintiff  in  this  instance  did  conduct  with  propriety,  and  had  not 
forfeited  his  right  to  be  carried  by  any  improper  misconduct. 

The  steamboat  proprietors  and  Citizens'  Coach  Company  had  at- 
tempted to  establish  a  monopoly,  which  should  not  be  countenanced,  it 
being  against  the  public  interest.  Such  a  monopoly  operated  to  increase 
the  price  and  prolong  the  time  of  passage  from  Providence  to  Boston  ; 
while  open  competition  promoted  the  public  interest  and  convenience, 
by  reducing  the  fare  and  expediting  the  passage. 

The  plaintiff,  in  tliis  instance,  requested  to  be  conveyed  from  Provi- 
dence to  Newport ;  during  which  passage,  it  was  well  known,  no  pas- 
sengers were  to  be  solicited,  —  that  was  to  be  done  only  on  the  passage 
from  Newport  to  Providence. 

For  the  defendant,  it  was  contended,  that  the  contract  made  by  the 
steamboat  proprietors  and  the  Citizens'  Company,  was  legal,  and  sub- 
served the  public  convenience,  and  the  interest  of  the  proprietors  of  the 
boats  and  stages;  it  insured  to  the  passengers  expeditious  passages 


222  JENCKS  V.   COLEMAN. 

at  reasonable  prices  ^  that  the  regulation,  excluding  the  agents  of  the 
Tremont  line  of  stages  from  the  steamboats,  was  legal  and  just,  because 
it  was  uecessar3'  to  promote  the  foregoing  objects,  to  wit :  the  public 
convenience,  and  the  interests  of  the  proprietors  of  both  the  boats  and 
stages.  Of  this  interdiction  the  plaintiff  had  received  notice,  and  had 
no  legal  right  to  complain. 

Stoky,  J.,  in  summing  up  to  the  jury,  after  recapitulating  the  evi- 
dence, said  :  There  is  no  doubt,  that  this  steamboat  is  a  common  carrier 
of  passengers  for  hire;  and,  therefore,  the  defendant,  as  commander, 
was  bound  to  take  the  plaintiff  as  a  passenger  on  board,  if  he  had  suit- 
able accommodations,  and  there  was  no  reasonable  objection  to  tlie 
character  or  conduct  of  the  plaintiff.  The  question,  then,  really  resolves 
itself  into  the  mere  consideration,  whether  there  was,  in  the  present 
case,  upon  the  facts,  a  reasonable  ground  for  the  refusal.  The  right  of 
passengers  to  a  passage  on  board  of  a  steamboat  is  not  an  unlimited 
right,  but  it  is  subject  to  such  reasonable  regulations  as  the  propri- 
etors may  prescribe,  for  the  due  accommodation  of  passengers  and  for 
the  due  arrangements  of  their  business.  The  proprietors  have  not  only 
this  right,  but  the  farther  right  to  consult  and  provide  for  their  own  in- 
terests in  the  management  of  such  boats,  as  a  common  incident  to  their 
right  of  property-.  They  are  not  bound  to  admit  passengers  on  board 
who  refuse  to  obey  the  reasonable  regulations  of  the  boat,  or  who  are 
guilty  of  gross  and  vulgar  habits  of  conduct ;  or  who  make  disturbances 
on  board  ;  or  whose  characters  are  doubtful  or  dissolute  or  suspicious ; 
and,  a  fortiori^  whose  characters  are  unequivocally  bad.  Nor  are  they 
bound  to  admit  passengers  on  board  whose  object  it  is  to  interfere 
with  the  interests  or  patronage  of  the  proprietors,  so  as  to  make  the 
business  less  lucrative  to  them. 

While,  therefore,  I  agree  that  steamboat  proprietors,  holding  them- 
selves out  as  common  carriers,  are  bound  to  receive  passengers  on 
board  under  ordinarj*  circumstances,  I  at  the  same  time  insist  that 
they  may  refuse  to  receive  them  if  there  be  a  reasonable  objection. 
And  as  passengers  are  bound  to  obey  the  orders  and  regulations  of  the 
proprietors,  unless  they  are  oppressive  and  grossly  unreasonable,  who- 
ever goes  on  board,  under  ordinar}'  circumstances,  impliedly  contracts 
to  obe}'  such  regulations ;  and  may  justly  be  refused  a  passage,  if  he 
wilfully  resists  or  violates  them. 

Now,  what  are  the  circumstances  of  the  present  case?  Jencks  (the 
plaintiff)  was,  at  the  time,  the  known  agent  of  the  Tremont  line  of 
stage  coaches.  The  proprietors  of  the  Benjamin  Franklin  had,  as  he 
well  knew,  entered  into  a  contract  with  the  owners  of  another  line  (the 
Citizens'  Stage  Coach  Company)  to  bring  passengers  from  Boston  to 
Providence,  and  to  carry  passengers  from  Providence  to  Boston,  in 
connection  with  and  to  meet  the  steamboats  plying  between  New  York 
and  Providence,  and  belonging  to  the  proprietors  of  the  Franklin. 
Such  a  contract  was  important,  if  not  indispensable,  to  secure  uni- 
formity, punctuality,  and  certainty  in  the  carriage  of  passengers  on 


JENCKS   V.   COLEMAN.  223 

both  routes  ;  and  might  be  material  to  the  interests  of  the  proprietors 
of  those  steamboats.  Jencks  had  been  in  the  habit  of  coming  on  board 
these  steamboats  at  Providence,  and  going  therein  to  Newport ;  and 
commonlj'  of  coming  on  board  at  Newport,  and  going  to  Providence, 
avowedly-  for  the  purpose  of  soliciting  passengers  for  tiie  Tremont  line, 
and  thus  interfering  with  the  patronage  intended  to  be  secured  to  the 
Citizens'  line  by  the  arrangements  made  with  the  steamboat  proprietors. 
He  had  the  fullest  notice  that  the  steamboat  proprietors  had  forbidden 
anj'  person  to  come  on  board  for  such  purposes,  as  incompatible  with 
their  interests.  At  the  time  when  he  came  on  board,  as  in  the  decla- 
ration mentioned,  there  was  every  reason  to  presume  that  he  was  on 
board  for  his  ordinar}'  purposes  as  agent.  It  has  been  said  that  the 
proprietors  had  no  right  to  inquire  into  his  intent  or  motives.  I  cannot 
admit  that  point.  1  think  that  the  proprietors  had  a  right  to  inquire 
into  such  intent  and  motives ;  and  to  act  upon  the  reasonable  presump- 
tions which  arose  in  regard  to  them.  Suppose  a  known  or  suspected 
thief  were  to  come  on  board ;  would  they  not  have  a  right  to  refuse 
him  a  passage?  Might  they  not  justly  act  upon  the  presumption  that 
his  object  was  unlawful?  Suppose  a  person  were  to  come  on  board, 
who  was  habituall}'  drunk,  and  gross  in  his  behavior,  and  obscene  in 
his  language,  so  as  to  be  a  public  annoyance  ;  might  not  the  proprietors 
refuse  to  allow  him  a  passage?  I  think  they  might,  upon  the  just 
presumption  of  what  his  conduct  would  be. 

It  has  been  said  by  the  learned  counsel  for  the  plaintiff,  that  Jencks 
was  going  from  Providence  to  Newport,  and  not  coming  back;  and 
that  in  going  down,  there  would,  from  the  verj-  nature  of  the  object, 
be  no  solicitation  of  passengers.  That  does  not  necessarily  follow ; 
for  he  might  be  engaged  in  making  preliminary  engagements  for  the 
return  of  some  of  them  back  again.  But,  supposing  there  were  no 
such  solicitations,  actual  or  intended,  I  do  not  think  the  case  is  essen- 
tially changed.  I  think  that  the  proprietors  of  the  steamboats  were 
not  bound  to  take  a  passenger  from  Providence  to  Newport,  whose  ob- 
ject was,  as  a  stationed  agent  of  the  Tremont  line,  therebv  to  acquire 
facilities  to  enable  him  successfuU}-  to  interfere  with  the  interests  of 
these  proprietors,  or  to  do  them  an  injur}-  in  their  business.  Let  us  take 
the  case  of  a  ferryman.  Is  he  bound  to  carry  a  passenger  across  a  ferry, 
whose  object  it  is  to  commit  a  trespass  upon  his  lands?  A  case  still 
more  strongly  in  point,  and  which,  in  my  judgment,  completely  meets 
the  present,  is  that  of  an  innkeeper.  Suppose  passengers  are  accus- 
tomed to  breakfast,  or  dine,  or  sup  at  his  house ;  and  an  agent  is  em- 
ployed b}'  a  rival  house,  at  the  distance  of  a  few  miles,  to  decoy  the 
passengers  away  the  moment  they  arrive  at  the  inn  ;  is  the  innkeeper 
bound  to  entertain  and  lodge  such  agent,  and  thereby  enable  him  to 
accomplish  the  very  objects  of  his  mission,  to  the  injury  or  ruin  of 
his  own  interests?    I  think  not. 

It  has  been  also  said,  that  the  steamboat  proprietors  are  bound  to 
carry  passengers  only  between  Providence  and  New  York,  and  not  to 


224  JENCKS  V.   COLEMAN.  ^ 

transport  them  to  Boston.  Be  it  so,  that  they  are  not  absolutely  bound. 
Yet  they  have  a  right  to  make  a  contract  for  this  latter  purpose,  if  they 
choose ;  and  especially  if  it  will  facilitate  the  transportation  of  passen- 
gers, and  increase  the  patronage  of  their  steamboats.  I  do  not  say 
that  they  have  a  right  to  act  oppressively  in  such  cases.  But  certainly 
the}'  may  in  good  faith  make  such  contracts,  to  promote  their  own,  as 
well  as  the  public  interests. 

The  onl}'  real  question,  then,  in  the  present  case  is,  whether  the  con- 
duct of  the  steamboat  proprietors  has  been  reasona,ble  and  bona  Jide. 
They  have  entered  into  a  contract  with  the  Citizens'  line  of  coaches 
to  carry  all  their  passengers  to  and  from  Boston.  Is  this  contract 
reasonable  in  itself;  and  not  designed  to  create  an  oppressive  and  mis- 
chievous monopoly  ?  There  is  no  pretence  to  say  that  any  passenger 
in  the  steamboat  is  bound  to  go  to  or  from  Boston  in  the  Citizens'  line. 
He  may  act  as  he  pleases.  It  has  been  said  by  the  learned  counsel  for 
the  plaintiff,  that  free  competition  is  best  for  the  public.  But  that  is 
not  the  question  here.  Men  ma}-  reasonably  differ  from  each  other  on 
that  point.  Neither  is  the  question  here,  whether  the  contract  with  the 
Citizens'  line  was  indispensable,  or  absolutely  necessary,  in  order  to 
ensure  the  carriage  of  the  passengers  to  and  from  Boston.  But  the 
true  question  is,  whether  the  contract  is  reasonable  and  proper  in  itself, 
and  entered  into  with  good  faith,  and  not  for  the  purpose  of  an  oppres- 
sive monopoly.  If  the  jury  find  the  contract  to  be  reasonable  and  proper 
in  itself  and  not  oppressive,  and  they  believe  the  purpose  of  Jencks  in 
going  on  board  was  to  accomplish  the  objects  of  his  agenc}',  and  in 
violation  of  the  reasonable  regulations  of  the  steamboat  proprietors, 
then  their  verdict  ought  to  be  for  the  defendant ;  otherwise,  to  be  for 
the  plaintiff. 

Webster,  for  the  plaintiff,  then  requested  the  Court  to  charge :  That 
the  jur}'  must  be  satisfied  that  this  agreement  was  necessar}'  or  clearly 
expedient  for  the  public  interest,  and  the  interest  of  the  proprietors  of 
the  boats,  or  otherwise  the  captain  of  the  boat  could  not  enforce  it,  by 
refusing  the  plaintiff  a  passage ;  Or,  that  the  defendant  must  show  that 
the  substantial  interest  of  the  proprietors,  or  of  the  public,  required  an 
arrangement,  such  as  they  had  entered  into,  in  order  to  justify  their 
refusal  to  carry  the  plaintiff  for  the  cause  assigned. 

The  Court  refused  to  give  instruction  in  the  manner  and  form  as 
prayed ;  but  did  instruct  the  jur}',  that  it  is  not  necessary  for  the  de- 
fendant to  prove,  that  the  contract  in  the  case  was  necessary  to  accom- 
plish the  objects  therein  stated ;  but  it  is  sufficient,  if  it  was  entered 
into  by  the  steamboat  proprietors  bona  fide  and  purely  for  the  purpose 
of  their  own  interest,  and  the  accommodation  of  the  public,  from  their 
belief  of  its  necessity,  or  its  utility.  If  the  jury  should  be  of  opinion 
that,  under  all  the  circumstances  of  the  case,  it  was  a  reasonable  con- 
tract, and  the  exclusion  of  the  plaintiff  was  a  reasonable  and  proper 
regulation  to  carry  it  into  effect  on  the  part  of  the  steamboat  propri- 
etors, then  their  verdict  ouglit  to  be  in  favor  of  the  defendant ;  other- 
wise, in  favor  of  the  plaintiff.  Verdict  for  defendant. 


TURNER  V.   NORTH   CAROLINA   RAILROAD  COMPANY.  225 


TURNER  V.   NORTH   CAROLINA   RAILROAD  COMPANF. 
Supreme  Court  of  North  Carolina,  1869. 

[63  N.  C.  522.] 

Reade,  J.  The  Court  in  which  the  plaintiff  seeks  redress  for  an 
alleged  injury,  is  a  Court  of  the  Government  of  one  of  the  States  of 
the  United  States.  The  plaintiff  was  engaged  in  a  rebellion  against 
the  Government  of  the  United  States,  and  having  for  a  time  absented 
himself  from  the  service  of  the  Rebellion,  he  contracted  with  the  de- 
fendant to  convey  him  to  the  field  of  active  operations,  that  he  might 
report  for  such  service  again ;  and  he  complains  that  the  defendant 
was  guilty  of  negligence  in  transporting  him,  and  that  thereby  he  was 
damaged ;  and  thereupon  he  asks  that  the  Court  will  enforce  his  claim, 
and  help  him  to  redress. 

If  the  Rebellion  had  been  successful,  and  a  government  had  been 
founded  upon  that  success,  it  would  doubtless  have  been  legitimate  for 
the  courts  of  such  government  to  adjust  the  rights  of  those  who  had 
been  engaged  as  its  agents  in  establishing  the  government.  But  will 
the  Courts  of  the  government  which  was  attempted  to  be  destroyed, 
interfere  to  redress  one  of  the  insurgents  who  was  disabled  in  the  ver}' 
act  of  hostility  to  the  government  whose  aid  he  now  seeks?  If  the  de- 
fendant, who  is  alleged  to  have  committed  the  injury,  was  a  friend  of 
the  United  States,  it  would  seem  to  be  an  ungenerous  discrimination  to 
subject  him  to  damages  for  an  act  of  which  his  government  had  the 
benefit;  and  if  the  defendant  was  a  co-rebel  with  the  plaintiff,  and  they 
were  in  pari  delicto,  the  government  would  consult  its  dignity,  and  not 
interfere  in  their  dispute. 

But  this  must  be  understood  to  be  restricted  to  acts  clearly  rebellious, 
or  intimately  connected  with  the  Rebellion,  and  in  aid  of  it;  for,  very 
clearly,  the  present  Courts  will  take  cognizance  of  all  matters  of  a  civil 
nature  between  rebels,  not  intimately  connected  with  and  in  aid  of  the 
rebellion.  In  the  view  of  the  Courts  of  the  present  Government,  the 
service  in  which  the  plaintiff  was  engaged  was  illegal.  The  act  of 
going  to  the  field  of  operations  was  illegal,  and  the  contract  of  the  de- 
fendant to  aid  him  by  carrying  him  to  thp  field,  was  an  illegal  contract, 
and  upon  the  supposition  tliat  both  parties  were  rebels, — the  most 
favorable  one  for  the  plaintiff — there  can  be  no  recovery  upon  it. 
Martin  v.  McMillan,  ante  468. 

The  objection  was  properly  taken  on  the  plea  of  the  general  issue. 
There  is  no  error.^ 

Per  Curiam.  Judgment  affirmed. 

*  But  see  Gray  v.  Western  Union  Telegraph  Co  ,  87  Ga  350.  —  Ed. 

15 


226  PEARSON   V.    DUANE. 


PEARSON  V.   DUANE. 
Supreme  Court  of  TiiE  United  States,  1867. 

[4  WaU.  605.] 

In  the  month  of  June,  1856,  the  steamship  Stevens,  a  common  carrier 
of  passengers,  of  which  Pearson  was  master,  on  her  regular  voNage 
from  Panama  to  San  Francisco,  arrived  at  the  intermediate  port  of 
Acapuico,  where  Duane  got  on  board,  with  the  intention  of  proceeding 
to  San  Francisco.  He  had,  shortly  before  this,  been  banished  from  that 
city  by  a  revolutionary  yet  powerful  and  organized  body  of  men,  called 
"The  Vigilance  Committee  of  San  Francisco,"  upon  penalty  of  death 
in  case  of  return.  Pearson  ascertained  that  Duane  had  been  expelled 
from  California,  and  put  Duane  aboard  the  steamer  Sonora.  Duane 
filed  a  libel  in  admiralty  for  damages.^ 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

This  case  is  interesting  because  of  certain  novel  views  which  this 
court  is  asked  to  sustain. 

Two  questions  arise  in  it:  1st,  was  the  conduct  of  Pearson  justifi- 
able? 2d,  if  not,  what  should  be  the  proper  measure  of  damages?  It 
is  contended,  as  the  life  of  Duane  was  in  imminent  peril,  in  case  of  his 
return  to  San  Francisco,  that  Pearson  was  justified,  in  order  to  save  it, 
in  excluding  him  from  his  boat,  notwithstanding  Duane  was  willing  to 
take  his  chances  of  being  hanged  by  the  Vigilance  Committee. 

Such  a  motive  is  certainly  commendable  for  its  humanit}-,  and  goes 
ver}*  far  to  excuse  the  transaction,  but  does  not  justif)'  it.  Common 
carriers  of  passengers,  like  the  steamship  Stevens,  are  obliged  to  carry 
all  persons  who  appl}*  for  passage,  if  the  accommodations  are  sufl^icient, 
unless  there  is  a  proper  excuse  for  refusal.' 

If  there  are  reasonable  objections  to  a  proposed  passenger,  the 
carrier  is  not  required  to  take  him.  In  this  case,  Duane  could  have 
been  well  refused  a  passage  when  he  first  came  on  board  the  boat, 
if  the  circumstances  of  his  banishment  would,  in  the  opinion  of  the 
master,  have  tended  to  promote  further  difl3culty,  should  he  be  returned 
to  a  city  where  lawless  violence  was  supreme. 

But  this  refusal  should  have  preceded  the  sailing  of  the  ship.  After 
the  ship  had  got  to  sea,  it  was  too  late  to  take  exceptions  to  the  char- 
acter of  a  passenger,  or  to  his  peculiar  position,  provided  he  violated 
no  inflexible  rule  of  the  boat  in  getting  on  board.  This  was  not  done, 
and  the  defence  that  Duane  was  a  "  stowaway,"  and  therefore  subject 
to  expulsion  at  an}-  time,  is  a  mere  pretence,  for  the  evidence  is  clear 
that  he  made  no  attempt  to  secrete  himself  until  advised  of  his  intended 
transfer  to  the  Sonora.  Although  a  railroad  or  steamboat  company 
can  properly  refuse  to  transport  a  drunken  or  insane  man,  or  one  whose 

*  The  statement  of  fact''  ha.s  been  condensed.  —  Ed. 

•  Jencks  v.  Coleman,  2  Sumner,  221  ;  Bennett  r.  Dutton,  10  New  Hampshire,  486. 


CHICAGO   A    NORTHWESTERN   RAILWAY   V.   WILLIAMS.  227 

character  is  bad,  they  cannot  expel  him,  after  having  admitted  him  as 
a  passenger,  and  received  his  fare,  unless  he  misbehaves  during  the 
journe}-.^  Duane  conducted  himself  properly  on  the  boat  until  his  ex- 
pulsion was  determined,  and  when  his  fare  was  tendered  to  the  purser, 
he  was  entitled  to  the  same  rights  as  other  passengers.  The  refusal  to 
carry  him  was  contrary  to  law,  although  the  reason  for  it  was  a  humane 
one.  The  apprehended  danger  mitigates  the  act,  but  affords  no  legal 
justification  for  it. 

But  the  sum  of  four  thousand  dollars  awarded  as  damages  in  this 
case  is  excessive,  bearing  no  proportion  to  the  injury  received.*  .  .  . 
We  are  of  opinion  that  the  damages  should  be  reduced  to  $50. 

It  is  ordered  that  this  cause  be  remitted  to  the  Circuit  Court  for  the 
District  of  California,  with  directions  to  enter  a  decree  in  favor  of  the 
appellee  for  fifty  dollars.  It  is  further  ordered  that  each  party  pay  his 
own  costs  in  this  court.  Order  accordingly. 


CHICAGO   &   NORTHWESTERN   RAILWAY  v.   WILLIAMS. 
Supreme  Court  of  Illinois,  1870. 

[55  ///.  185.] 

Mr.  Justice  Scott  delivered  the  opinion  of  the  court. 

There  is  but  one  question  of  any  considerable  importance  presented 
by  the  record  in  this  case. 

It  is  ^mply  whether  a  raiilroad  compan}',  which,  by  our  statute  and 
the  common  law,  is  a  common  carrier  of  passengers,  in  a  case  where 
the  company,  by  their  rules  and  regulations,  have  designated  a  certain 
car  in  their  passenger  train  for  the  exclusive  use  of  ladies,  and  gentle- 
men accompanied  by  ladies,  can  exclude  from  the  privileges  of  such  car 
a  colored  woman  holding  a  first-class  ticket,  for  no  other  reason  except 
her  color. 

The  evidence  in  the  case  estabhshes  these  facts  —  that,  as  was  the 
custom  on  appellants'  road,  they  had  set  apart  in  their  passenger  trains 
a  car  for  the  exclusive  use  of  ladies,  and  gentlemen  accompanied  by 
ladies,  and  that  such  a  car,  called  the  "ladies'  car,"  was  attached  to 
the  train  in  question.  The  appellee  resided  at  Rockford,  and  being  de- 
sii'ous  of  going  from  that  station  to  Belvidere,  on  the  road  of  appellants, 
for  that  purpose  purchased  of  the  agent  of  the  appellants  a  ticket, 
which  entitled  tlie  holder  to  a  seat  in  a  first-class  car  on  their  road. 
On  the  arrival  of  the  train  at  the  Rockford  station  the  appellee  offered 
and  endeavored  to  eater  the  ladies'  car,  but  was  refused  permission  so 
to  do,  and  was  directed  to  go  forward  to  the  car  set  apart  for  and  occu- 
pied mostly  by  men.     On  the  appellee  persisting  on  entering  the  ladies* 

1  Coppin  V.  Braithwaite,  8  Jurist,  875 ;  Prendergast  v.  Compton,  8  Carrington  and 
Payne,  462. 

2  The  discussion  of  this  point  is  omitted.  —  Ed. 


228  CHICAGO  &  NORTHWESTERN   RAILWAY  V.   WILLIAMS. 

car,  force  enough  was  used  by  the  brakeman  to  prevent  her.  At  the 
time  she  attempted  to  obtain  a  seat  in  that  car  on  appellants'  train 
there  were  vacant  and  unoccupied  seats  in  it,  for  one  of  the  female 
witnesses  states  that  she,  with  two  other  ladies,  a  few  moments  after- 
wards, entered  the  same  car  at  that  station  and  found  two  vacant  seats, 
and  occupied  the  same.  No  objection  whatever  was  made,  nor  is  it  in- 
sisted any  other  existed,  to  appellee  taking  a  seat  in  the  ladies'  car 
except  her  color.  The  appellee  was  clad  in  plain  and  decent  apparel, 
and  it  is  not  suggested,  in  the  evidence  or  otherwise,  that  she  was  not 
a  woman  of  good  character  and  proper  behavior. 

It  does  not  appear  that  the  company  had  ever  set  apart  a  car  for  the 
exclusive  use,  or  provided  any  separate  seats  for  the  use  of  colored 
persons  who  might  desire  to  pass  over  their  line  of  road.  The  evidence 
discloses  that  colored  women  sometimes  rode  in  the  ladies'  car,  and 
sometimes  in  the  other  car,  and  there  was,  in  fact,  no  rule  or  regula- 
tion of  the  company  in  regard  to  colored  passengers. 

The  case  turns  somewhat  on  what  are  reasonable  rules,  and  the  power 
of  railroad  companies  to  establish  and  enforce  them. 

It  is  the  undoubted  right  of  railroad  companies  to  make  all  reason- 
able rules  and  regulations  for  the  safety  and  comfort  of  passengers 
travelling  on  their  lines  of  road.  It  is  not  only  their  right,  but  it  is  their 
duty  to  make  such  rules  and  regulations.  It  is  alike  the  interest  of 
the  companies  and  the  public  that  such  rules  should  be  established  and 
enforced,  and  ample  authority  is  conferred  by  law  on  the  agents  and 
8er\'ants  of  the  companies  to  enforce  all  reasonable  regulations  made  for 
the  safety  and  convenience  of  passengers. 

It  was  held,  in  the  case  of  the  111.  Cent.  R.  R.  Co.  v.  Whittemore, 
43  111.  423,  that  for  a  non-compliance  with  a  reasonable  rule  of  the  com- 
pany, a  party  might  be  expelled  from  a  train  at  a  poifit  other  than  a 
regular  station. 

If  a  person  on  a  train  becomes  disorderly,  profane,  or  dangerous  and 
offensive  in  his  conduct,  it  is  the  duty  of  the  conductor  to  expel  such 
guilty  party,  or  at  least  to  assign  him  to  a  car  where  he  will  not  en- 
danger or  annoy  the  other  passengers.  Whatever  rules  tend  to  the 
comfort,  order,  and  safety  of  the  passengers,  the  company  are  fully 
authorized  to  make,  and  are  amply  empowered  to  enforce  compliance 
therewith. 

But  such  rules  and  regulations  must  always  be  reasonable  and  uni- 
form in  respect  to  persons. 

A  railroad  company  cannot  capriciously  discriminate  between  pas- 
sengers on  account  of  their  nativity,  color,  race,  social  position,  or  their 
political  or  religious  beliefs.  Whatever  discriminations  are  made  must 
be  on  some  principle,  or  for  some  reason,  that  the  law  recognizes  as 
just  and  equitable,  and  founded  in  good  public  policy.  What  are 
reasonable  rules  is  a  question  of  law,  and  is  for  the  court  to  determine, 
under  all  the  circumstances  in  each  particular  case. 

In  the  present  instance  the  rule  that  set  apart  a  car  for  the  exclusive 


CHICAGO   &   NORTHWESTERN    RAILWAY    V.   WILLIAMS.  229 

use  of  ladies,  and  gentlemen  accompanied  by  ladies,  is  a  reasonable 
one,  and  the  power  of  the  company  to  establish  it  has  never  been 
doubted. 

If  the  appellee  is  to  be  denied  the  privilege  of  the  "  ladies'  car,**  for 
which  she  was  willing  to  pay,  and  had  paid,  full  compensation  to  the 
company,  a  privilege  which  is  accorded  alike  to  all  women,  whether 
the}'  are  rich  or  pooi",  it  must  be  on  some  principle  or  under  some  rule 
of  the  company  that  the  law  would  recognize  as  reasonable  and  just. 
If  she  was  denied  that  privilege  by  the  mere  caprice  of  the  brakeman 
and  conductor,  and  under  no  reasonable  rule  of  the  company,  or  what 
is  still  worse,  as  the  evidence  would  indicate,  through  mere  wantonness 
on  the  part  of  the  brakeman,  then  it  was  unreasonable,  and  therefore 
unlawful.  It  is  not  pretended  that  there  was  an}'  rule  that  excluded 
her,  or  that  the  managing  officers  of  the  company  had  ever  given  any 
directions  to  exclude  colored  persons  from  that  car.  If,  however,  there 
was  such  a  rule,  it  could  not  be  justified  on  the  ground  of  mere  preju- 
dice. Such  a  rule  must  have  for  its  foundation  a  better  and  a  sounder 
reason,  and  one  more  in  consonance  with  the  enlightened  judgment  of 
reasonable  men.  An  unreasonable  rule,  that  affects  the  convenience 
and  comfort  of  passengers,  is  unlawful,  simply  because  it  is  unreason- 
able.    The  State  v.  Overton,  4  Zab.  435. 

In  the  case  of  the  West  Chester  &  Philadelphia  R.  R.  Co.  v.  Miles, 
55  Penn.  209,  it  was  admitted  that  no  one  could  be  excluded  from  a 
carriage  by  a  public  carrier  on  account  of  color,  religious  belief,  politi- 
cal relations,  or  prejudice,  but  it  was  held  not  to  be  an  unreasonable 
regulation  to  seat  passengers  so  as  to  preserve  order  and  decorum  and 
prevent  contacts  and  collisions  arising  from  well-known  repugnances, 
and  therefore  a  rule  that  required  a  colored  woman  to  occupy  a  separate 
seat  in  a  car  furnished  by  the  company,  equally  as  comfortable  and  safe 
as  that  furnished  for  other  passengers,  was  not  an  unreasonable  rule. 

Under  some  circumstances  this  might  not  be  an  unreasonable  rule. 

At  all  events,  public  carriers,  until  they  do  furnish  separate  seats 
equal  in  comfort  and  safety  to  those  furnished  for  other  travellers,  must 
be  held  to  have  no  right  to  discriminate  between  passengers  on  account 
of  color,  race,  or  nativity  alone. 

We  do  not  understand  that  the  appellee  was  bound  to  go  forward  to 
the  car  set  apart  for  and  occupied  mostly  by  men,  when  she  was  directed 
by  the  brakeman.  It  is  a  sufficient  answer  to  say  that  that  car  was  not 
provided  by  any  rule  of  the  company  for  the  use  of  women,  and  that 
another  one  was.  This  fact  was  known  to  the  appellee  at  the  time. 
She  may  have  undertaken  the  journey  alone,  in  view  of  that  very  fact, 
as  women  often  do. 

The  above  views  dispose  of  all  the  objections  taken  to  the  instructions 
given  by  the  court  on  behalf  of  the  appellee,  and  the  refusal  of  the 
coui-t  to  give  those  asked  on  the  part  of  the  appellants,  except  the  one 
which  tells  ine  jury  that  they  may  give  damages  above  the  actual  dam- 
ages sustained,  for  the  delay,  vexation,  and  indignity  to  which  the  ap 


230  BROWN   V.    MEMPHIS   &   C.   RAILROAD. 

pellee  was  exposed  if  she  was  wrongfull}'  excluded  from  the  car.  If  the 
part}-  in  such  case  is  confined  to  the  actual  pecuniar}'  damages  sustained, 
it  would,  most  often,  be  no  compensation  at  all,  above  nominal  dam- 
ages, and  no  salutary  effect  would  be  produced  on  the  wrong  doer  by 
such  a  verdict.  But  we  apprehend  that  if  the  act  is  wrongfully  and 
wantonly  committed,  the  party  may  recover,  in  addition  to  the  actual 
damages,  something  for  the  indignity,  vexation,  and  disgrace  to  which 
the  party  has  been  subjected. 

It  is  insisted  that  the  damages  are  excessive,  in  view  of  the  slight 
Injury  sustained. 

There  is  evidence  from  which  the  jury  could  find  that  the  brakeman 
treated  the  appellee  very  rudely,  and  placed  his  hand  on  her  and  pushed 
her  away  from  the  car.  The  act  was  committed  in  a  public  place,  and 
whatever -disgrace  was  inflicted  on  her  was  in  the  presence  of  strangers 
and  friends.  The  act  was,  in  itself,  wrongful,  and  without  the  shadow 
of  a  reasonable  excuse,  and  the  damages  are  not  too  high.  The  jury 
saw  the  witnesses,  and  heard  their  testimony,  and  with  their  finding 
we  are  fully  satisfied. 

Perceiving  no  error  in  the  record,  the  judgment  is  affirmed. 

Judgment  a^rmed. 


BROWN  V.  MEMPHIS   &  C.   RAILROAD. 
Circuit  Court  of  the  United  States,  W.  Tenn.,  1880. 

[5  Fed.  499.] 

Tnrs  was  a  common-law  action  for  the  wrongful  exclusion  of  the 
plaintiff,  a  colored  woman,  from  the  ladies'  car  of  the  defendant's  train, 
upon  her  refusal  to  take  a  seat  in  the  smoking-car.     At  the  time  of  her 


BROWN   V.   MEMPHIS   &   C.   RAILROAD.  231 

exclusion  the  plaintiff  held  a  first-class  ticket  over  the  defendant's  road 
from  Corinth,  Mississippi,  to  Memphis,  Tennessee,  and  her  behavior 
while  in  the  car  was  lady-like  and  inoffensive.^ 

The  defendant  pleaded  that  the  plaintiff  was  a  notorious  and  publio 
courtesan,  addicted  to  the  use  of  profane  language  and  offensive  habits 
of  conduct  in  public  places ;  that  the  ladies'  car  was  set  apart  exclu- 
sively for  the  use  of  genteel  ladies  of  good  character  and  modest  de- 
portment, from  which  the  plaintiff  was  rightfully  excluded  because  of 
her  bad  character. 

Hammond,  District  Judge,  charged  the  jurj*  that  the  same  principles 
of  law  were  to  be  applied  to  women  as  men  in  determining  whether  the 
exclusion  was  lawful  or  not ;  that  the  social  penalties  of  exclusion  of 
unchaste  women  from  hotels,  theatres,  and  other  public  places  could 
not  be  imported  into  the  law  of  common  carriers  ;  that  they  had  a  right 
to  travel  in  the  streets  and  on  the  public  highways,  and  other  people 
who  travel  must  expect  to  meet  them  in  such  places ;  and,  as  long  as 
their  conduct  was  unobjectionable  while  in  such  places,  they  could  not 
be  excluded.  The  carrier  is  bound  to  carry  good,  bad,  and  indifferent, 
and  has  nothing  to  do  with  the  morals  of  his  passengers,  if  their  be- 
havior be  proper  while  travelling.  Neither  can  the  carrier  use  the 
character  for  chastity  of  his  female  passengers  as  a  basis  of  classifica- 
tion, so  that  he  may  put  all  chaste  women,  or  women  who  have  the 
reputation  of  being  chaste,  into  one  car,  and  those  known  or  reputed 
to  be  unchaste  in  another  car.  Such  a  regulation  would  be  contrar}'  to 
public  policy,  and  unreasonable.  It  would  put  every  woman  purchasing 
a  railroad  ticket  on  trial  for  her  virtue  before  the  conductor  as  her  judge, 
and,  in  case  of  mistake,  would  lead  to  breaches  of  the  peace.  It  would 
practically  exclude  all  sensible  and  sensitive  women  from  travelling  at 
all,  no  matter  how  virtuous,  for  fear  they  might  be  put  into  or  uncon- 
sciously occup}'  the  wrong  car.^ 

The  police  power  of  the  carrier  is  sufficient  protection  to  other  pas- 
sengers, and  he  can  remove  all  persons,  men  or  women,  whose  conduct 
at  the  time  is  annoying,  or  whose  reputation  for  misbehavior  and  in- 
decent demeanor  in  public  is  so  notoriousl}-  bad  that  it  furnishes  a  rea- 
sonable ground  to  believe  that  the  person  will  be  offensive  or  annoying 
to  others  travelling  in  the  same  car ;  and  this  is  as  far  as  the  carrier 
has  any  right  to  go.  He  can  no  more  classify  women  according  to 
their  reputation  for  chastity,  or  want  of  it,  than  he  can  so  grade  the 
men.  Verdict  for  the  plaintiff , 

1  Part  of  the  statement  of  facts  and  part  of  the  charge  are  omitted.  —  Ed. 

2  See  Brown  v.  R.  R.,  4  Fed.  37.— Ed. 


232  KEGINA  V.    SPKAGUE. 


REGINA  V.   SPRAGUE. 
Surrey  Quarter  Sessions,  England,  1899. 

[63  Justice  of  the  Peace,  233.] 

At  the  Surry  Quarter  Sessions,  held  at  Kingston-on-Thames,  before 
Mr.  George  Cave,  chairman,  and  a  full  bench  of  magistrates,  Martha 
Jane  Sprague,  the  wife  of  Sidney  Sprague,  was  indicted  for  that  she, 
being  the  keeper  of  a  common  inn  for  the  reception  and  accommodation 
of  travellers,  called  the  Hautboy  Hotel,  at  Ockham,  in  the  county  of 
Surre}',  did,  on  the  27th  of  Oct.  1898,  without  suflBcient  cause  and  not 
regarding  her  duty  as  an  innkeeper,  wilfuU}'  and  unlawfully  neglect  and 
refuse  to  supply  Florence  Wallace  Harberton,  wife  of  Viscount  Harber- 
ton,  of  108  Cromwell  Road,  London,  then  being  a  traveller,  with 
victuals,  which  she  then  required,  and  for  which  she  was  willing  to 
pay.     The  defendant  pleaded  "  Not  guilty." 

Avory  and  Lord  Coleridge  addressed  the  jur}-.  The  Chairman, 
in  summing  up,  said  that  an  innkeeper  could  not  refuse  to  supply  a 
traveller  with  food  and  lodging  without  some  lawful  excuse.  Here 
Mrs.  Sprague  did  not  say  that  she  had  a  right  to  dictate  to  Lady 
Harberton  what  dress  she  was  to  wear.  Therefore  the  question  whether 
ladies  should  or  should  not  wear  '■'■  rational  dress  "  was  not  in  dispute. 
An  innkeeper  could  not  refuse  to  suppl}'  food  because  of  the  particular 
shape  of  the  dress  of  the  traveller.  The  onlj'  question  therefore  was 
whether  there  was  a  refusal  to  supply  food  in  a  decent  and  proper 
place.  The  innkeeper  could  select  the  room  provided  it  was  a  decent 
and  proper  room.  Nor,  in  his  opinion,  was  a  guest  entitled  to  have 
a  room  exactly  to  his  or  her  taste.  The  jury  must  judge  b}'  the  re- 
quirement of  ordinar}'  and  reasonable  persons.  The  learned  chairman 
then  referred  to  the  evidence,  and  asked  the  jury  to  consider  whether 
the  bar  parlour  was  a  decent  and  proper  room  for  a  guest  to  have 
lunch  in  and,  further,  whether  the  bar  parlour  was  not  to  all  intents 
and  purposes  part  of  the  hotel.  The  jur}'  retired  to  consider  their 
verdict,  and,  after  a  short  deliberation,  they  returned  a  verdict  of 
*'  Not  guilty."  * 

1  See,  also,  Prendergast  v.  Compton,  8  C.  &  P.  454.  —  Ed. 


ATWATER  V.   SAWYEB.  233 


ATWATER  V.  SAWYER 
Supreme  Court  of  Maine,  1884. 

[76  Me.  539.1] 

Haskell,  J.  The  plaintiffs  applied  for  dinner  at  the  defendant's 
inn  and  were  refused  it.  For  damages  suffered  thereby  this  action  is 
brought.  Soldiers  in  uniform  came  to  the  defendant's  inn,  and  be- 
haved in  a  disorderly  manner,  and  threatened  to  turn  him  and  his  house 
into  the  street. 

Defendant  offered  to  prove  that  the  plaintiffs  were  refused  enter- 
tainment because  they  wore  the  same  uniform,  indicating  that  they 
belonged  to  the  same  band,  and  claimed  that  he  could  not  discriminate 
between  them  and  the  disorderly  soldiers.    The  evidence  was  excluded. 

The  defendant  was  not  required  by  law  to  furnish  entertainment  for 
intoxicated  or  disorderly  persons.  If  he  had  reason  to  suppose  that 
the  plaintiffs  belonged  to  the  same  band  of  disorderly  soldiers,  who 
had  threatened  to  despoil  his  house,  and  that  they  were  evil  disposed 
towards  him,  or  had  conspired  with  the  disorderly  soldiers  to  harm  his 
house,  or  guests,  or  if  they  were  intoxicated,  or  disorderly  persons, 
then  he  would  have  been  justified  in  refusing  them  entertainment,  and 
the  question  should  have  been  submitted  to  the  jury  ;  but  the  evidence 
excluded  falls  short  of  what  would  be  a  justification  in  the  premises, 
and  for  that  reason  was  properly  excluded. 

The  requested  instruction  that  the  defendant  was  bound  to  provide 
food,  suflacient  for  the  demands  of  ordinary  travel  and  no  more,  was 
rightly  withheld,  because  the  evidence  does  not  tend  to  prove  a  com- 
pliance with  that  rule.  It  goes  so  far  only  as  to  show  the  want  of 
food,  without  sufficient  reason  or  excuse.  The  instructions  of  the  pre- 
siding justice  taken  together  hold  that  the  evidence  of  lack  of  food  is 
not  sufficient  in  this  case  to  excuse  the  defendant,  as  surely  it  is  not. 
Nor  was  the  evidence  excluded  sufficient  even  to  tend  to  prove  a  legal 
excuse  for  the  want  of  food  to  furnish  entertainment  to  the  plaintiffs. 

The  defendant  kept  an  inn.  His  failure  to  procure  the  license 
required  by  law  does  not  relieve  him  from  his  obligation  to  travellers. 
Norcross  v.  Norcross,  53  Maine,  163. 

The  facts  of  this  case  do  not  require  that  the  rules  of  law  so  stren- 
uously contended  for  by  the  learned  counsellors  for  the  defendant 
should  be  applied. 

1  Only  one  opinion  is  printed;  the  coort  was  nnanimons  in  the  result  reached. — 
Ed. 


234     GODWIN  V.   CAROLINA  TELEPHONE  &   TELEGRAPH  CO. 

GODWIN  V.  CAROLINA  TELEPHONE  &  TELEGRAPH 
COMPANY. 

Supreme  Court  of  Noeth  Carolina,  1904. 

[48  S.  E.  636.] 

Clark,  C.  J.  The  exception  to  the  verification  of  the  amendment 
to  the  answer  is  without  merit.  Since  Phifer  v.  Ins.  Co.,  123  N.  C. 
410,  31  S.  E.  716,  the  General  Assembly  has  amended  section  258  of 
the  Code  by  providing  (Laws  1901,  p.  854,  c.  610)  that  when  a  corpora- 
tion is  a  part}'  the  verification  of  any  pleading  may  be  made  by  a 
"  managing  or  local  agent  thereof"  as  well  as  by  an  officer,  who  alone, 
formerly,  was  authorized  to  make  verification  in  such  cases. 

This  is  an  application  for  a  mandamus  to  compel  the  defendant  to 
put  a  telephone,  with  necessar}'  fixtures  and  appliances,  in  the  dwelling 
house  of  the  plaintiff  in  the  town  of  Kinston,  and  admit  her  to  all  the 
privileges  accorded  to  other  subscribers  to  the  telephone  exchange  op- 
erated by  the  defendant  in  said  town.  It  was  admitted  by  the  plaintiff 
that  "  she  is  a  prostitute,  and  keeps  a  bawdy  house  within  the  corporate 
limits  of  the  town  of  Kinston,  and  desires  to  have  said  telephone  put  in 
said  bawdy  house."  The  court  being  of  opinion  that  the  plaintiff  was 
not  entitled  to  a  mandamus  for  such  purpose,  the  plaintiff  took  a  non- 
suit and  appealed. 

There  was  no  error.  A  mandamus  lies  to  compel  a  telephone  com- 
pany to  place  telephones  and  furnish  telephonic  facilities,  without 
discrimination,  for  those  who  will  pay  for  the  same  and  abide  the  rea- 
sonable regulations  of  the  company.  This  is  well  settled.  State  t>. 
Nebraska  Telephone  Co.  (Neb.),  22  N.  W.  237,  52  Am.  Rep.  404 ;  27 
Am.  &  Eng.  Enc.  (2d  Ed.)  1022  ;  19  Am.  &  Eng.  Enc.  (2d  Ed.)  877; 
Joyce  on  Electric  Law,  §  1036,  and  numerous  cases  cited  by  all  these. 
In  Telegraph  Co.  v.  Telephone  Co.,  61  Vt.  241,  17  Atl.  1071,  5  L.  R. 
A.  161,  15  Am.  St.  Rep.  893,  it  is  said :  "  A  telephonic  system  is 
simpl}'  a  system  for  the  transmission  of  intelligence  and  news.  It  is, 
perhaps,  in  a  limited  sense,  and  yet  in  a  strict  sense,  a  common  carrier- 
It  must  be  equal  in  its  dealings  with  all."  That  case  cites  many  au- 
thorities, which  are,  indeed,  uniform,  that  the  telephone  business,  like 
uU  other  services  fixed  witii  a  public  use,  must  be  operated  without  dis- 
crimination, affording  "equal  rights  to  all,  special  privileges  to  none." 
Telephones  "are  public  vehicles  of  intelligence,  and  they  who  own  or 
control  them  can  no  more  refuse  to  perform  impartially  the  functions 
that  they  have  assumed  to  discharge  than  a  railway  company,  as  a  com- 
mon carrier,  can  rightfully  refuse  to  perform  its  duty  to  the  public,"  is 
said  in  Telephone  Co.  v.  Telegraph  Co.,  66  Md.  399,  at  page  414,  7 
Atl.  811,  59  Am.  Rep.  167,  which  is  another  very  instructive  and  well- 
reasoned  case  upon  the  same  subject.  Telephone  companies  are  placed 
by  our  corporation  act  on  the  same  footing,  as  to  public  uses,  as  rail- 


GODWIN  V.   CAEOLINA  TELEPHONE  &  TELEGRAPH  CO.     235 

roads  and  telegraphs,  and  the  corporation  commission  is  authorized  to 
regulate  their  charges  and  assess  their  propert}-  for  taxation.  But  while 
it  is  true  there  can  be  no  discrimination  where  the  business  is  lawful, 
no  one  can  be  compelled,  or  is  justified,  to  aid  in  unlawful  undertakings. 
A  telegraph  company  should  refuse  to  send  libellous  or  obscene  mes- 
sages, or  those  which  clearh*  indicate  tlie  furtherance  of  an  illegal  act 
or  the  perpetration  of  some  crime.  But  recentl}-  in  New  York  the  tele- 
phone and  telegraph  instruments  were  taken  out  of  "pool  rooms" 
which  was  used  for  the  purpose  of  selling  bets  on  horse  races.  "  Keep- 
ing a  bawd}'  house  "  was  an  indictable  offence  at  common  law,  and  is 
still  so  in  this  state.  State  v.  Galley,  104  N.  C.  858,  10  S.  E.  455,  17 
Am.  St.  Rep.  704  ;  State  v.  Webber,  107  N.  C.  962,  12  S.  E.  598,  22 
Am.  St.  Rep.  920.  One  who  leases  a  house  for  the  purpose  of  its  be- 
ing kept  as  a  bawdy  house,  or  with  the  knowledge  that  it  will  be  used 
for  that  purpose  is  indictable.  9  A.  &  E.  Ene.  (2d  Ed.)  527.  A  man- 
damus will  never  issue  to  compel  a  respondent  to  aid  in  acts  which  are 
unlawful.  Wiedwald  v.  Dodson,  95  Cal.  450,  30  Pac.  580  ;  Gruner  v. 
Moore,  6  Colo.  526  ;  Chicot  County  v.  Kruse,  47  Ark.  80,  14  S.  W. 
469 ;  People  v.  Hyde  Park,  117  111.  462,  6  N.  E.  33. 

It  is  argued  that  a  common  carrier  would  not  be  authorized  to  refuse 
to  convey  the  plaintiff  because  she  keeps  a  bawdy  house.  Nor  is  the 
defendant  refusing  her  a  telephone  on  that  ground,  but  because  she 
wishes  to  place  the  telephone  in  a  bawdy  house.  A  common  carrier 
could  not  be  compelled  to  haul  a  car  used  for  such  purpose.  If  the 
plaintiff  wished  to  have  the  phone  placed  in  some  other  house  used  by 
her,  or  even  in  a  house  where  she  resided,  but  not  kept  as  a  bawdy 
house,  she  would  not  be  debarred  because  she  kept  another  house  for 
such  unlawful  and  disreputable  purpose.  It  is  not  her  character,  but  the 
character  of  the  business  at  the  house  where  it  is  sought  to  have  the  tele- 
phone placed,  which  required  the  court  to  refuse  the  mandamus.  In 
like  manner,  if  a  common  carrier  knew  that  passage  was  sought  by  per- 
sons who  are  travelling  for  the  execution  of  an  indictable  offence,  or  a 
telegraph  company  that  a  message  was  tendered  for  a  like  purpose, 
both  would  be  justified  in  refusing  ;  and  certainly  when  the  plaintiff  ad- 
mits that  she  is  carrying  on  a  criminal  business  in  the  house  where  she 
seeks  to  have  the  telephone  placed  the  court  will  not,  by  its  m,andamus^ 
require  that  facilities  of  a  public  nature  be  furnished  to  a  house  used  for 
that  business.  For  like  reason  a  mandamus  will  not  lie  to  compel  a 
water  company  to  furnish  water,  or  a  light  company  to  supply  light,  to 
a  house  used  for  carrying  on  an  illegal  business.  The  courts  will  en- 
join or  abate,  not  aid  a  public  nuisance. 

The  further  consideration  of  this  matter  is  not  required  on  this  ap- 
plication for  a  mandamus,  but  should  be  upon  an  indictment  and  trial 
of  the  plaintiff  for  the  violation  of  law  so  brazenly  avowed  by  her. 

No  error.  ^ 

*  Compare  Pullman  P.  C.  Co.  v.  Bales,  80  Tex.  311,  with  Western  Union  Telegraph 
Co.  V.  Ferguson,  57  Ind.495.  —  Ed. 


236  PULLMAN  COMPANY  V.   KRAUSS. 


PULLMAN   COMPANY  v.  KRAUSS. 
Supreme  Court  of  Alabama,  1906. 

[145  Ala.  395.1] 

Action  by  Max  Krauss  against  the  Pullman  Company  for  breach  of 
contract  contained  in  a  ticket  issued  by  excluding  him  from  its  car. 

Denson,  J.  The  defendant  filed  several  pleas  in  answer  to  the  com- 
plaint. Demurrers  were  sustained  to  those  numbered  4,  5,  and  6, 
respectively.  The  fourth  plea  sets  up  the  defence  that  when  the  plain- 
tiff presented  himself  at  the  defendant's  car  for  passage  the  conductor 
and  passengers  who  had  bought  berths  and  space  in  said  car  thought 
that  the  plaintiff  had  a  "  contagious  and  loathsome  disease"  ;  that  his 
hands  and  arms  were  wrapped  in  cloth,  and  that  there  were  eruptions 
upon  a  part  of  his  body  that  were  visible  ;  that  a  number  of  passengers 
on  the  said  car  objected  to  plaintiff  being  allowed  to  ride  thereon,  and 
the  conductor  of  said  car  would  not  allow  him  to  take  passage  thereon 
because  of  the  appearance  of  the  said  disease ;  and  it  is  averred  that 
the  plaintiff  did  have  a  loathsome  and  contagious  disease,  to  wit,  syph- 
ilitic eczema.  The  fifth  plea  set  up  a  rule  of  tiie  defendant  company 
against  carrying  persons  infected  with  a  contagious  disease,  and  it  is 
averred  plaintiff'  had  such  a  disease,  to  wit,  S3philitic  eczema.  The 
sixth  plea  is  in  effect  the  same  as  the  fourth  plea,  with  the  addi- 
tional averment  that  at  the  time  plaintiff  purchased  his  ticket  he  did 
not  communicate  to  the  agent  who  sold  him  the  ticket  the  fact  that  he 
had  a  contagious  disease,  and  that  the  agent  did  not  know  that  the 
plaintiff  had  a  contagious  disease. 

The  right  of  a  person  to  a  berth  or  passage  on  a  sleeping  car  is  not 
an  unlimited  right.  But  it  is  subject  to  such  reasonable  regulation  as 
the  defendant  had  prescribed  for  the  due  accommodation  of  passengers 
and  for  the  safety  and  comfort  of  passengers.  Sleeping  car  companies 
are  not  bound  to  admit  persons  as  passengers  on  its  cars  who  are  guilty 
of  gross  and  vulgar  habits  of  conduct,  or  who  make  disturbances  on 
board,  and,  a  fortiori,  persons  who  are  afflicted  with  contagious  or 
infectious  disease,  so  that  there  would  be  a  probability  of  other  passen- 
gers contracting  the  disease  with  which  said  afflicted  person  was  suf- 
fering. As  is  said  in  Hutchinson  on  Carriers,  with  respect  of  common 
carriers  :  "  As,  therefore,  the  common  carrier  holds  himself  out  as  the 
carrier  of  only  such  goods  as  are  in  a  fit  condition  to  be  carried,  and 
may,  as  has  been  seen,  notwithstanding  his  public  profession,  refuse  to 
accept  such  as  are  unfit  to  be  carried  on  account  of  their  kind,  the 
unsuitable  manner  in  which  they  are  prepared  for  transportation,  or  the 

1  Only  a  part  of  the  opinion  is  printed.  —  Ed. 


PULLMAN  COMPANY  V.    KRAUSS.  237 

insecurity  or  damage  which  they  may  occasion  to  the  goods  of  other 
shippers  or  to  the  carrier  himself,  so  the  carrier  of  passengers,  however 
public  he  may  hold  himself  out  or  be  engaged  as  such  carrier,  may 
refuse  to  accept  persons  offering  themselves  as  passengers  who  are  unfit 
to  be  carried,  either  because  such  person,  from  bad  character,  from 
being  afflicted  by  contagious  disease,  from  apprehended  evil  designs, 
either  upon  the  carrier  himself  or  his  passengers,  or  from  drunkenness 
or  insanity,  would  be  unfit  associates  for  them  or  unsafe  for  the  car- 
rier." Hutchinson  on  Carriers  (2d  Ed.),  §  640;  Nevin  v.  Pullman 
Palace  Car  Co.,  106  111.  222,  46  Am.  Rep.  688;  Wood's  Ry.  Law, 
1035  ;  Putnam  v.  Railroad  Co.,  N.  Y.  108,  14  Am.  Rep.  190 ;  Pad- 
dock V.  A.  T.  &  S.  R.  R.  Co.    (C.  C),  37  Fed.  841,  4  L.  R.  A.  231. 

Then  in  the  first  instance,  the  defendant  company,  if  the  plaintiff 
was  afflicted  with  a  contagious  or  infectious  disease,  loathsome  in  its 
nature,  would  have  been  justifiable  in  refusing  to  contract  with  plain- 
tiff to  carry  him  as  a  passenger  or  to  furnish  him  a  berth  in  its  cars  ;  or 
if,  after  receiving  him  as  a  passenger  or  making  the  contract  with  him 
to  carry  him,  the  defendant  became  aware  that  the  plaintiff  was  afflicted 
with  such  disease,  the  defendant,  in  consideration  of  the  duty  it  owed 
the  other  passengers  to  protect  them  from  the  misfortune  of  this  one 
passenger,  would  have  been  justified  in  putting  an  end  to  the  contract 
and  in  declining  to  admit  or  carry  him  as  a  passenger.  ConoUy  v. 
Crescent  City  R.  Co.  (La.),  5  South.  259,  6  South.  526,  3  L.  R.  A. 
133  Am.  St.  Rep.  389  ;  Paddock  v.  A.  T.  &  S.  R.  R.  Co.,  supra.  But 
the  action  here  being  in  assumpsit  for  a  breach  of  the  contract,  to  per- 
fect a  rescission  of  the  contract  —  a  putting  an  end  to  it  —  the  defend- 
ant must  have  offered  the  purchase  price  of  the  ticket  of  consideration 
paid  by  plaintiff  on  the  agreement  to  carry,  back  to  him.  In  this  respect 
pleas  4,  5,  and  6  were  bad,  having  been  pleaded,  as  they  were,  in  bar 
of  the  entire  cause  of  action.  Hence  the  demurrer  was  properly  sus- 
tained to  them.^ 

1  Se«  McHugh  v.  Schlosser,  154  Pa.  St.  480.  —Ed. 


238  ZACHERY   V.   MOBILE   &   OHIO    liAILROAD    COMPANY. 


ZACHERY  V.   MOBILE  &   OHIO  RAILROAD   COMPANY. 
Sdpreme  Court  of  Mississippi,  1898. 

[75  Miss.  746.] 

Whitfield,  J.,  delivered  the  opinion  of  the  court. 

The  demurrer  to  the  special  plea  should  liave  been  sustained.  The 
former  opinion  of  this  court  stated  this.  The  blind  man  in  this  case 
"  had,  at  the  times  referred  to  in  the  declaration,  when  he  applied  for 
tickets  and  permission  to  travel  on  defendant's  cars,  as  much  skill  and 
ability  to  travel  without  help  or  attendants  as  any  blind  man  could 
have.  The  declaration  avers  that  though  blind,  he  was  otherwise 
qualified  to  travel  on  the  railroad  cars,  and,  in  fact,  had  travelled  for 
several  ^ears  constantly  on  appellee's  railroad  without  objection.  The 
demurrer  to  this  declaration  was  overruled,  and  the  present  demurrer 
to  the  special  plea  presents  the  same  objections,  and,  of  course,  should 
have  been  sustained.  It  is  not  every  sick  or  crippled  or  infirm  person 
whom  a  railroad  regulation  can  exclude,  but  one  so  sick  or  so  crippled 
or  so  infirm  as  not  to  be  able  to  travel  without  aid.  And  so  it  is  not 
every  blind  person,  but  one  who,  though  blind,  is  otherwise  incompe- 
tent to  travel  alone  on  the  cars.  Otherwise,  we  would  be  compelled  to 
hold  that  one  suffering  from  sickness,  no  matter  how  slight,  or  one  who 
had  lost  an  arm  or  leg,  or  one,  no  matter  how  active  physicall}',  and 
no  matter  how  expert  a  traveller,  though  being  blind,  could  be  shut  out 
by  such  a  rule.  And  this  ought  not  to  be,  and  cannot  be,  sound  law. 
We  are  asked  to  hold  that  a  regulation  that  no  blind  person  whatever 
shall  travel  unaccompanied  by  an  assistant,  no  matter  how  skillful  or 
expert  a  traveller  he  may  have  been,  or  may  be,  and  no  matter  how 
perfectly  qualified  in  every  other  respect  to  travel  on  cars  unaccom- 
panied, is  a  reasonable  rule.  This  cannot  be  sound.  Each  case  must 
depend  on  its  own  facts,  and  the  reasonableness  of  the  refusal  to  sell 
the  blind  person  a  ticket  must,  on  principle,  depend  not  on  a  universal, 
arbitrary  and  undiscriminating  rule  like  this  one,  but  on  the  capacit}-  to 
travel  unaccompanied,  of  the  particular  blind  person,  as  shown  by  the 
proof  on  that  point  in  his  case. 

Judgment  reversed,  demurrer  to  special  plea  sustained  and  remanded. 


OWENS  V.  MACON   &  BRUNSWICK   RAILROAD   COMPANY.  239 


OWENS  V.  MACON  &  BRUNSWICK  RAILROAD   COMPANY. 
Supreme  Court  of  Georgia,  1903. 

[119  Ga.  230.1] 

Lamar,  J.,  This  was  a  suit  by  one  of  the  guards  in  charge  of  a 
lunatic,  but  it  was  conceded  on  the  argument  here  that  he  could  not 
recover  if  the  company  was  justified  in  refusing  to  transport  the  luna- 
tic, and  we  shall  therefore  consider  what  was  the  carrier's  obligation  to 
the  insane  man.  The  relation  of  carrier  and  passenger  creates  recip- 
rocal duties.  One  is  bound  safely  to  transport;  the  other,  to  conform 
to  all  reasonable  regulations,  and  so  to  conduct  himself  as  not  to  in- 
commode other  passengers  who  have  an  equal  right  to  a  safe  and  com- 
fortable passage.  Those  who  act  as  to  be  obnoxious  may  be  refused 
transportation  or  ejected.  The  payment  of  fare  and  the  possession  of 
a  ticket  do  not  require  the  carrier  to  transport  those  who  are  noisy  or 
boisterous,  or  who  threaten  the  safety  of,  or  occasion  inconvenience  to, 
others  on  the  train.  But  in  the  case  of  unfortunates  who  are  not  re- 
sponsible for  their  disorderly  conduct,  and  who,  at  best,  are  involun- 
tary passengers,  a  different  question  is  presented,  calling  in  each  case 
for  the  exercise  of  a  wise  discretion.  On  the  one  hand,  regard  must  be 
had  for  the  safety  and  comfort  of  other  travellers,  and,  on  the  other,  to 
the  fact  that  in  losing  his  mind  the  lunatic  has  not  lost  the  right  to  be 
transported.  It  may  be  vitally  important  that  he  be  taken  to  a  place 
where  he  can  receive  the  attention  and  confinement  rendered  necessar}' 
by  his  mental  state.  The  carrier  cannot  absolutely  refuse  trans- 
portation to  insane  persons,  but  it  may  in  all  cases  insist  that  he  be 
properly  attended,  safely  guarded,  and  securely  restrained.  And  even 
where  such  precautions  have  been  taken,  it  is  not  bound  to  afford  him, 
if  violent,  transportation  in  the  cars  in  which  other  travellers  are  being 
conveyed.^ 

1  Only  an  extract  from  the  opinion  is  printed.  — Ed. 

2  Seealso Atchison  T.  &  S.  F.  Ry.  Co.  v.  Weber,  33  Kans.  543.— Ed. 


240  NAIKIN   V.   KENTUCKY   HEATING   COMPANY. 


NAIRm  V.   KENTUCKY  HEATING  COMPANY. 
CoDRT  OF  Appeals  of  Kentucky.  1900. 

[86  S.  pr.l676.1] 

Action  by  Robert  Nairin  against  the  Kentucky  Heating  Company 
for  an  injunction  restraining  defendant  from  turning  off  plaintiff's 
supply  of  gas.  On  an  application  for  dissolution  of  the  injunction. 
Application  granted. 

Du  Relle,  J.  It  will  be  observed  that  the  only  grounds  urged  in  the 
pleadings  in  this  case  for  relief  by  injunction  are,  stated  briefl}',  the 
facts  that  the  defendant  had  natural  gas  which  it  was  furnishing  for 
heating  purposes,  and  that  plaintiff  desired  the  gas  for  lighting  pur- 
poses ;  that  defendant  had  been  restrained  from  furnishing  gas  for 
lighting,  but  that  plaintiff  was  not  a  part^'  to  the  proceedings ;  and  that, 
while  defendant  was  forbidden  by  the  ordinance  under  which  it  was 
permitted  to  do  business  to  sell  gas  for  lighting  purposes,  the  city 
which  passed  the  ordinance  was  not  complaining.  It  might  be  suffi- 
cient to  stop  here  and  say  that  here  is  no  ground  stated  for  relief  by 
injunction.  No  contract  is  averred,  a  violation  of  which  is  sought  to 
be  prevented  —  no  suggestion  of  a  contract,  except  the  averment  that 
plaintiff  applied  for  a  gas  connection  and  got  it.  There  is  not  even  an 
averment  that  he  made  application  for  a  gas  connection  for  lighting 
purposes.  Obviously,  unless  the  defendant  be  shown  to  be  exercising 
a  public  franchise  in  the  vending  of  gas  for  lighting  purposes,  there  is 
no  more  ground  for  injunction  shown  here  than  if  he  had  sought  one  to 
restrain  Peaslee,  Gaulbert  &  Co.  from  refusing  to  vend  oil  to  him. 
But  the  petition  on  its  face  shows  that,  as  to  the  sale  of  gas  for  light- 
ing purposes,  the  defendant  was  not  only  not  exercising  a  public  fran- 
chise, but  was,  by  the  ordinance  which  permitted  it  to  do  business  in 
Louisville  at  all,  expressly  forbidden  to  sell  gas  for  any  other  than 
heating  purposes.  The  plaintiff  is  therefore  in  the  position  of  asking 
an  injunction  requiring  the  defendant  to  violate  an  ordinance  of  the 
city.' 

*  Only  one  point  is  printed.  —  Ed. 

3  Compare :    Decker  v.  Atchison,  T.  &  S.  F.  R.  R.,  3  Okla.  553.  —  Ed. 


BLUTHENTHAL  V.   SOUTHERN  RAILWAY  COMPANY.      241 

BLUTHENTHAL  v.  SOUTHERN  RAILWAY  COMPANY. 
Circuit  Court  of  the  United  States,  1898. 

[84  Fed.  920.] 

Application  for  Mandatory  Injunction. 

This  was  a  bill  filed  by  Bluthenthal  &  Bickart,  residents  and  citizens 
of  the  Northern  district  of  Georgia,  against  the  Southern  Railway-  Com- 
pany, a  corporation  of  Virginia,  and  a  resident  and  citizen  of  Virginia. 
Bluthenthal  &  Bickart  were  engaged  in  interstate  commerce  in  the  state 
of  South  Carolina  and  other  states,  and  they  were  engaged  several 
months  prior  to  the  filing  of  their  bill  in  shipping  goods  consisting  of 
whiskeys,  brandies,  wines,  beer,  and  similar  articles,  in  original  pack- 
ages, into  South  Carolina,  and  there  selling  the  same  through  their 
agents.  In  view  of  the  dispensary  law  of  South  Carolina,  the}'  were 
compelled  to  sell  such  goods  in  original  packages  in  that  state,  and  to 
ship  the  goods  into  the  state  in  original  packages.  On  September  11, 
1897,  Bluthenthal  &  Bickart  were  notified  by  the  railway  company  that 
it  would  refuse  to  accept  further  shipments  of  original  packages.  On  the 
da}'  following,  a  shipment  of  original  packages  of  liquors  was  tendered 
to  the  railway  company,  and  by  it  refused,  although  freight  charges 
were  offered  in  advance,  and  Bluthenthal  &  Bickart  agreed  to  sign  any 
release  which  the  railway  company  would  require. 

Before  Pardee,  Circuit  Judge,  and  Newman,  District  Judge. 

Per  Curiam.  This  cause  came  on  to  be  heard  upon  application  for 
injunction  pendente  lite,  was  submitted  upon  affidavits,  and  argued, 
whereupon  this  court,  being  of  opinion  that  the  business  of  complain- 
ants of  transporting  liquors  into  the  state  of  South  Carolina  for  sale 
there  under  the  lawful  police  regulations  of  that  state  is  a  legitimate  busi- 
ness, which  is  entitled  to  be  protected,  and  that  the  Southern  Railway 
Company,  as  a  common  carrier,  is  required  to  receive  and  transport 
the  goods  of  the  complainant  when  tendered  in  such  packages  as  will 
constitute  reasonable  and  safe  condition  for  shipment,  and  being  of 
opinion,  under  the  evidence  submitted,  that  wines  and  liquors  in  bot- 
tles packed  in  wooden  cases,  and  tendered  in  car-load  lots,  as  described 
in  the  complainants'  bill  and  amendments  thereto,  are  in  reasonable 
and  proper  condition  for  shipment,  and  that  the  defendant  company 
should  receive  and  transport  the  same  :  It  is  ordered  that  an  injunction 
pendente  lite  issue,  enjoining  the  defendant  company  from  refusing  to 
receive  and  transport  car-load  lots  of  the  complainants'  goods,  packed 
and  protected  as  set  forth  in  complainants'  bill,  when  accompanied  with 
a  waiver  releasing  the  carrier  from  all  waste  and  breakage  not  the 
result  of  the  negligence  of  the  defendant  company  or  its  agents.* 

1  See  also  Southern  Exp.  Co.  v.  Rose  Co.,  124  Ga.  581.  — Ed. 
16 


242  CONNORS,   ADMINISTRATRIX  V.   CUNARD   STEAMSHIP   CO. 


CONNORS,  ADMINISTRATRIX  v.  CUNARD  STEAMSHIP 

COMPANY. 

Supreme  Judicial  Court  of  Massachusetts,  1910. 

[204  Mass.  310.^] 

LoRiNG,  J.  The  case  of  a  person  requiring  medical  attendance  does 
not  come  within  the  same  class  as  the  cases  (put  in  some  of  the  opinions) 
where  a  very  old  or  a  very  young  person  is  alighting  from  a  car,  and 
for  that  or  any  other  reason  requires  more  time  than  a  person  in  good 
health  and  not  under  a  disabihty.  Those  persons  and  persons  laboring 
under  other  difficulties  are  included  in  the  class  of  persons  fit  to  travel. 
^\Tiat  we  have  to  consider  in  the  case  at  bar  is  the  case  of  one  not  fit 
to  travel  without  medical  attention.  Had  notice  been  given  to  the 
defendant  corporation  of  the  condition  of  the  plaintiff's  intestate  when 
her  ticket  was  bought  for  her  the  question  of  what  care  her  physical 
condition  was  likely  to  demand  and  how  and  by  whom  it  was  to  be 
provided  could  have  been  taken  up  with  deliberation  and  some  special 
arrangement  made  for  the  necessary  extra  care  and  the  amount  to  be 
paid  to  the  defendant  corporation  if  it  was  arranged  that  the  extra 
care  was  to  be  furnished  by  it. 

But  nothing  of  that  kind  was  done  in  the  case  at  bar.  The  ticket 
for  the  plaintiff's  intestate  was  bought  and  paid  for  and  she  presented 
herself  for  embarkation  as  an  ordinary  passenger.  We  are  of  opinion 
that  the  presentation  of  Dr.  Hare's  letter  was  a  representation  by  her 
that  she  needed  medical  attention  during  the  voyage  and  looked  to  the 
defendant  corporation  to  supply  it. 

If  after  the  visit  which  the  ship's  surgeon  paid  to  the  intestate  while 
she  was  lying  in  bed  in  her  room  the  intestate  had  not  been  put  ashore 
there  would  have  been  a  serious  question  whether  the  defendant  cor- 
poration had  not  assumed  the  responsibility  of  giving  her  proper 
medical  care  during  the  voyage  on  the  principle  acted  upon  by  the 
court  in  deciding  for  the  plaintiff  in  Croom  v.  Chicago,  Milwaukee  & 
St.  Paul  Railway,  52  Minn.  296. 

*  Only  an  extract  b  printed.  —  Ed. 


REASOR  X.  PADUCAH  &   ILLINOIS  FERRY  CO.  243 


REASOR  V.  PADUCAH  &  ILLINOIS  FERRY  COMPANY. 
Court  of  Appeals  of  Kentucky,  1913. 

[152  Ky.  220.1] 

Opinion  of  the  Court. 

A  steamship  company,  holding  itself  out  to  the  public  as  a  carrier 
of  passengers  and  freight,  is  a  common  carrier  within  the  meaning  of 
the  statute,  and  the  duties  imposed  upon  common  carriers,  by  the  laws 
of  the  land,  are  applicable  to  it.  The  fact  that  it  is  running  a  special 
excursion  does  not  have  the  effect  of  relieving  its  owners  of  the  duty 
imposed  upon  it  as  a  common  carrier.  6  Cyc.  535;  IndianapoUs,  etc. 
R.  Co.  V.  Rinard,  46  Ind.  293.  One  of  the  duties,  owing  by  a  common 
carrier  to  the  public,  is  to  carry,  without  discrimination,  as  far  as 
practicable,  all  persons  who  apply  for  passage  and  tender  in  payment 
therefor  the  established  fares,  or  provide  themselves  with  tickets  en- 
tithng  them  to  passage.  But  this  duty  to  serve  the  public  does  not 
deprive  the  carrier  of  the  right  to  make  reasonable  and  proper  rules 
for  the  conduct  of  its  business,  among  which  may  be  enumerated  the 
right  to  deny  passage  to,  or  to  exclude  from  its  conveyance,  one  already 
a  passenger,  if  such  person  is  in  such  an  intoxicated  condition  as  to  be 
unable  to  care  for  himself,  or  as  to  make  it  probable  that  he  will  annoy 
or  disturb  the  other  passengers ;  or,  it  may  refuse  passage  to,  or  exclude 
from  its  vehicle,  a  person  of  notorious  bad  character,  or  one  habitually 
guilty  of  misconduct,  when  it  is  apparent  that  the  safety  and  com- 
fort of  the  other  passengers  will  be  endangered  by  the  presence  of  such 
person  in  the  conveyance.  The  fact  that,  on  a  former  occasion,  a 
passenger  had  been  guilty  of  misconduct,  drunk,  boisterous,  and  in- 
decent in  his  behavior  toward  other  passengers,  will  not  justify  the 
carrier  in  refusing  to  permit  him  to  again  travel  upon  its  conveyance, 
if,  when  he  presents  himself  for  passage,  he  is  sober  and  is  conducting 
himself  in  a  decent  and  orderly  manner. 

*  An  extract  only  from  this  opinion  is  printed.  —  Ed. 


244  STATE   EX  EEL.   V.  CO^■SUMERS  GAS   TEUST   Ca 


STATE  EX  EEL.  WOOD  v.  CONSUMERS  GAS  TRUST  CO. 

Supreme  Codbt  of  Indiana,  1901. 

[157  Ind.  345.1] 

Hadlet,  J.  .  .  .  The  things  requested  and  commanded  of  the  ap- 
pellee were  to  lay  a  service-pipe  from  its  main  in  Bellefontaine  Street 
to  the  property  line  in  front  of  the  relatrix's  house,  and  to  permit  her 
to  use  the  gas.  The  mandate  is  not  to  furnish  the  relatrix  with  an 
adequate  or  any  definite  amount  of  gas,  but  the  obvious  force  and 
limitations  of  the  request,  and  order,  are  to  require  the  appellee  to 
furnish  her  with  the  necessary  means,  and  permit  her  to  use  the  gas 
upon  the  same  terms  that  other  inhabitants  of  the  city  are  permitted 
to  use  it.  Is  it  the  legal  duty  of  appellee  to  do  these  things  ?  Man- 
damics  is  a  proper  remedy  to  compel  appellee  to  furnish  gas  to  the  re- 
latrix if  it  is  shown  that  she  is  entitled  to  it.  Portland,  &c.  Co.  v.  State 
ex  rel,  135  Ind.  54,  21  L.  R.  A.  639. 

The  appellee  is  a  corporation  authorized  by  the  legislature  to  exer- 
cise the  right  of  eminent  domain  (Acts  1889,  p.  22),  and  licensed  by 
the  citj'  of  Indianapolis  to  lay  pipes  through  its  streets  and  alleys  for 
the  transportation  and  distribution  of  natural  gas  to  its  customers. 
These  rights,  which  involve  an  element  of  sovereignty,  and  which  can 
exist  only  by  grant  from  the  public,  are  rooted  in  the  principle  that 
their  exercise  will  bestow  a  benefit  upon  that  part  of  the  public,  in 
whose  behalf  the  grant  is  made,  and  the  benefit  received  by  the  citizens 
is  the  adequate  consideration  for  the  right  and  convenience  surren- 
dered by  them.  The  grant  thus  resting  upon  a  public  and  reciprocal 
relation,  imposes  upon  the  appellee  the  legal  obligation  to  serve  all 

1  This  case  is  abridged.  —  Ed. 


STATE   EX   REL.   V.   CONSUMERS   GAS   TRUST   CO.  245 

members  of  the  public  contributing  to  its  asserted  right,  impartially, 
and  to  permit  all  such  to  use  gas  who  have  made  the  necessary  arrange- 
ments to  receive  it,  and  apply  therefor,  and  who  pay,  or  offer  to  pay, 
the  price,  and  abide  the  reasonable  rules  and  regulations  of  the  com- 
pany. Portland,  «&;c.  Co.  v.  State  ex  rel.,  135  Ind.  54 ;  Coy  v.  Indian- 
apolis Gas  Co.,  146  Ind.  655, 36  L.  R.  A.  535  ;  Haugen  v.  Albina,  &c.  Co., 
21  Ore.  411,  28  Pac.  244,  14  L.  R.  A.  424 ;  People  v.  Manhattan  Gas 
Co.,  45  Barb.  136  ;  Crumley  v.  Watauga  Water  Co.,  99  Tenn.  420, 
41  S.  W.  1058  ;  American,  &c.  Co.  v.  State,  46  Neb.  194,  64  N.  W. 
711,  30  L.  R.  A.  447  ;  State  ex  rel.  v.  Butte  City  Water  Co.,  18  Mont. 
199,  44  Pac.  966,  32  L.  R.  A.  697,  56  Am.  St.  574. 

But,  without  controverting  the  law  as  declared  in  the  foregoing  cases, 
or  claiming  exemption  from  the  rule,  it  is  answered  as  a  justification 
for  denying  the  relatrix  the  use  of  gas,  that  the  corporation  was  or- 
ganized as  a  voluntary  enterprise  in  the  general  interest  of  the  people 
of  Indianapolis ;  that  its  purpose  was  not  the  making  of  money  for 
any  one,  but  to  furnish  gas  to  consumers  in  the  city  at  the  lowest  pos- 
sible rate,  and  that  the  supply  of  gas  the  corporation  has  on  hand,  or 
that  it  may  possibly  procure,  is  insufficient  to  supply  what  customers  it 
has  now  connected  with  its  mains,  in  severely  cold  weather,  and  that 
to  permit  the  relatrix  to  use  gas  would  be  to  further  reduce  the  already 
insufficient  supply.  Will  these  facts  relieve  the  appellee  of  its  duty 
to  permit  the  relatrix  to  use  its  gas  ?  If  they  will,  then  it  must  be 
true  that  the  relatrix  is  not  entitled  to  share  in  the  gas  furnished  by 
appellee  to  the  inhabitants  of  the  city,  because  her  participation  will 
reduce  the  possible  supply  below  the  full  requirements  of  those  already 
being  served. 

It  is  proper  to  observe  that  the  present  consumers  of  appellee's  gas 
are  not  here  complaining  of  the  quantity  of  gas  received  by  them,  or 
protesting  against  the  admission  of  the  relatrix  to  a  share  of  the  sup- 
ply, and  it  is  difficult  to  see  how  the  appellee,  while  continuing  to  assert 
and  exercise  its  extraordinary  rights,  may  set  up  its  own  default  or 
probable  default  to  others  as  a  legal  excuse  for  the  non-performance  of 
its  duty  to  the  relatrix. 

The  legal  effect  of  the  answer  is  that  the  relatrix  shall  have  no  gas 
because  her  neighbors,  in  common  right,  have  none  to  spare.  It  is  ad- 
mitted, because  not  denied,  that  the  relatrix  is  a  member  of  that  part 
of  the  public  which  appellee  has  engaged  to  serve.  As  such  she  has 
borne  her  part  of  the  public  burdens.  She  has  rendered  her  share 
of  the  consideration.  Bellefontaine  Street  in  front  of  her  house  has 
been  dug  up  and  her  property  made  servient  to  the  use  of  appellee  in 
laying  its  pipes,  and  in  carrying  forward  its  business,  and  her  right  to 
use  the  gas,  and  to  share  in  the  public  benefit,  thus  secured,  whatever 
it  maj'  amount  to,  is  equal  to  the  right  of  any  other  inhabitant  of  the 
city.  The  right  to  gas  is  held  in  common  by  all  those  abutting  on  the 
streets  in  which  appellee  has  laid  its  pipes,  or  it  is  held  of  right  by 
none.     The  legislature   alone   can  authorize  the  doing  of  the  things 


246       STATE  EX  REI.,  V.   CONSUMERS  GAS  TRUST  CO. 

done  by  appellee,  and  this  body  is  prohibited  by  the  fundamental  law 
from  granting  a  sovereign  power  to  be  exercised  for  the  benefit  of  a 
class,  or  for  the  benefit  of  an}-  part  of  the  public  less  than  the  whole 
residing  within  its  range.  Cooley's  Con.  Lim.  (6th  ed.),  651,  and 
cases  cited. 

Appellee's  contract  is  with  the  State,  and  its  extraordinary  powers 
are  granted  in  consideration  of  its  engagement  to  bring  to  the  commu- 
nit}'  of  its  operations  a  public  benefit ;  not  a  benefit  to  a  few,  or  to 
favorites,  but  a  benefit  equall}'  belonging  to  every  citizen  similarly 
situated  who  may^  wish  to  avail  himself  of  his  privilege,  and  prepare  to 
receive  it.  There  can  be  no  such  thing  as  prioritj-,  or  superioritj',  of 
riglit  among  those  who  possess  the  right  in  common.  That  the  bene- 
ficial agency  shall  fall  short  of  expectation  can  make  no  difference  in 
the  right  to  participate  in  it  on  equal  terms.  So  if  appellee  has  found 
it  impossible  to  procure  enough  gas  fully  to  supply  all,  this  is  no  suffi- 
cient reason  for  permitting  it  to  say  that  it  will  deliver  all  it  has  to 
one  class  to  the  exclusion  of  another  in  like  situation.  It  is  immaterial 
that  appellee  was  organized  to  make  money  for  no  one,  but  to  supply 
gas  to  the  inhabitants  of  Indianapolis  at  the  lowest  possible  rate.  It 
has  pointed  to  us  no  special  charter  privilege,  and  under  the  law  of  its 
creation,  certain  it  is,  that  its  unselfish  purpose  will  not  relieve  it  of 
its  important  duty  to  the  public.  The  principle  here  announced  is  not 
new.  It  is  as  old  as  the  common  law  itself.  It  has  arisen  in  a  multi- 
tude of  cases  affecting  railroad,  navigation,  telegraph,  telephone,  water, 
gas,  and  other  like  companies,  and  has  been  many  times  discussed  and 
decided  by  the  courts,  "  and  no  statute  has  been  deemed  necessar}-  to 
aid  the  courts  in  holding  that  when  a  person  or  compan}'  undertakes 
to  supply  a  demand  which  is  '  affected  with  a  public  interest,'  it  must 
supply  all  alike,  who  are  like  situated,  and  not  discriminate  in  favor 
of,  nor  against  any."  45  Cent.  L.  J.  278;  Haugen  v.  Albina,  &c 
Co.,  21  Ore.  411 ;  Olmsted  v.  Proprietors,  &c.,  47  N.  J.  L.  311 ;  Stern 
V.  "Wilkesbarre  Gas  Co.,  2  Kulp.  499  ;  Chicago,  &c.  Co.  v.  People,  56 
111.  365;  8  Am.  Rep.  690;  Nebraska  Tel.  Co.  v.  State,  55  Neb.  627, 
634  ;  Watauga  Water  Co.  v.  Wolfe,  99  Tenn.  429,  41  S.  W.  1060,  63 
Am.  St.  841 ;  State  ex  rel.  v.  Delaware,  &c  R.  Co.,  48  N.  J.  L.  55, 
2  Atl.  803,  57  Am.  Rep.  543. 

In  a  further  material  sense  the  discrimination  asserted  by  the  answer 
becomes  injurious  to  the  relatrix.  It  is  a  matter  of  common  knowledge 
that  natural  gas  is  a  cheap  and  convenient  fuel,  and  for  many  reasons 
is  eagerl}'  sought  by  those  who  may  reasonably  obtain  it.  It  is  there- 
fore, of  like  knowledge,  that  in  a  community  where  it  is  supplied  to 
some  premises,  and  denied  to  others,  the  effect  is  to  enhance  the  value 
of  such  parcels  as  have  it,  by  making  it  more  desirable  and  profitable 
to  occupy  them,  and  to  depreciate  the  value  of  such  parcels  as  are  ex- 
cluded from  its  use.  It  is  very  clear  that  appellee  may  not,  under  the 
guise  of  administering  a  public  benefit,  exercise  a  public  power,  to  take 
the  property  of  one  and  confer  it  upon  another. 


STATE   EX   REL.   V.   CONSUMERS   GAS   TRUST   CO.  247 

The  principal  argument  of  appellee's  counsel  is,  that  not  having  suf- 
ficient gas  to  supply  its  present  customers,  and  having  exhausted  every 
available  means  for  increasing  its  supply,  it  is  therefore  impossible  for 
it  to  perform  its  public  duty,  and  mandamus  will  not  lie  to  compel  an 
attempt  to  perform  a  duty  impossible  of  performance.  We  concede 
in  the  fullest  terms  that  mandamus  will  not  lie  to  require  an  attempt 
to  do  a  thing  shown  to  be  impossible.  But  this  is  not  the  question  we 
have  before  us.  The  relatrix  is  not  asking,  nor  the  court  commanding 
that  the  company  attempt  to  increase  its  supply  of  gas.  The  relatrix 
is  only  seeking  to  be  permitted  to  share  in  the  quantity  of  gas  the  com- 
pany has  at  its  command,  whatever  that  may  be,  on  the  same  terms 
that  others  are  permitted  to  use  it.  There  is  in  the  request  of  the  re- 
latrix nothing  unreasonable,  and  nothing  impossible  of  performance. 
The  whole  question  comes  to  this.  The  appellee  under  public  grant 
for  the  dispensation  of  a  public  good,  has  taken  possession  of  certain 
streets  and  alleys  in  Indianapolis  for  the  distribution  and  sale  of  natural 
gas  to  those  abutting  on  its  lines.  The  relatrix  owning  a  lot  abutting 
on  one  of  the  appellee's  lines  erected  thereon  a  dwelling-house,  and 
upon  the  faith  of  being  permitted  to  use  the  gas  has  piped  her  house, 
and  constructed  her  heating  apparatus  of  a  form,  suitable  only  to  the 
use  of  natural  gas  as  a  fuel,  which  will  be  worthless  if  natural  gas  is 
denied  her.  She  has  in  common  with  other  abutters  been  subjected 
to  the  inconvenience  of  having  the  street  in  front  of  her  house  dug  up 
and  had  her  property  occupied  with  the  company's  pipes.  She  has 
made  all  necessary  arrangements  to  receive  the  gas,  has  tendered  ap- 
pellee its  usual  charges,  has  offered  to  abide  by  its  reasonable  rules  and 
regulations,  and  we  perceive  neither  legal  reason,  nor  natural  justice, 
in  denying  her  the  rights  accorded  to  those  of  her  neighbors  who  have 
contributed  in  the  same  way  to  appellee's  enterprise.  The  second 
paragraph  of  answer  was  insuflacient,  and  the  demurrer  thereto  should 
have  been  sustained. 

Judgment  reversed,  with  instructions  to  sustain  the  demurrer  to  the 
second  paragraph  of  the  return  to  the  alternative  writ  of  mandate. 


248  PEOPLE   V.   NEW   YORK   CENTRAL,   ETC.   RAILROAD. 


PEOPLE  V.  NEW  YORK   CENTRAL,  ETC.   RAILROAD   CO. 
Sdpr£H£  Court  of  New  Yobk,  1883. 

[28  Hun,  543.1] 

Davis,  J.  .  .  .  The  petition  in  each  case  alleges  that  the  said  rail- 
road company,  since  about  the  16th  daj-  of  June,  1882,  "has  sub- 
stantially refused  to  discharge  its  duties  as  a  common  carrier,  and  has, 
to  a  material  degree,  suspended  the  exercise  of  its  franchises  b}'  re- 
fusing to  take  freight  which  has  been  offered  at  its  stations  in  the  city 
of  New  York  for  transportation,  at  the  usual  rates  and  upon  the  usual 
terms ; "  and  that  said  railroad  company  has  refused  to  accept  and 
transport^the  greater  part  of  the  outgoing,  and  to  deliver  the  incoming 
freight  and  property  of  the  merchants  doing  business  in  the  city  of 
New  York,  who  have  relations  with  and  need  for  the  services  of  such 
railway,  and  has  refused  to  them  to  furnish  adequate  transportation  for 
the  same,  so  that  from  that  date  the  business  community  of  the  city  of 
New  York  are  unable  to  obtain  sufficient  and  adequate  transportation 
for  their  goods  on  said  railroad,  although  they  have  offered  the  same 
on  the  usual  terms  and  rates  of  transportation  ;  but  said  railroad  has 
uniformly  delayed  and  sometimes  peremptorily  refused  to  receive  and 
deliver  freight,  aud  to  transport  the  outgoing  freight  as  aforesaid,  and 
at  certain  points  within  the  State  has  declined  to  receive  incoming 
freight,  whereby  great  loss  and  damages  accrue  to  the  people  of  the 
State  of  New  York,  for  which  there  is  no  adequate  remedy  in  damages, 
and  that  the  trade  and  commerce  of  said  city  is  greatly  injured  by  the 
action  of  the  said  railroad. 

These  allegations  are  broad  enough  to  show  a  quite  general  and 
largely  injurious  refusal  and  neglect  to  perform  the  duties  of  carrier. 
The  affidavits  go  far  to  sustain  these  allegations ;  but  it  is  not  impor- 
tant to  examine  them  minutely,  because  the  omission  of  a  demurrer 
ore  terms  extends  to  and  admits  the  well-pleaded  averments  of  the 
petition.  Stated  very  briefly,  the  affidavits  show  that,  for  about  two 
weeks,  the  respondents  failed  and  neglected  to  receive  from  three- 
quarters  to  seven-eighths  of  the  goods  offered  for  transportation  from 
the  city,  and  large  quantities  seeking  transportation  to  the  city ;  and 
in  many  instances  refused  to  receive  goods  offered,  and  turned  them 
back  and  closed  their  gates  during  business  hours,  thus  causing  a  stop- 
page of  all  delivery  of  freight ;  that  in  some  instances  unusual  terms 
were  sought  to  be  imposed  as  a  condition  of  receiving  goods,  which 
would  increase  the  risks  of  the  owner ;  that  the  refusal  to  receive  goods 
did  not  arise  from  any  unwillingness  or  inabilit}'  on  the  part  of  the 
shipper  to  pay  charges,  but  was  wholly  the  act  of  respondents  ;  that  it 
was  so  continuous  and  extensive  that  it  seriously  interfered  with  the 

1  This  case  is  abridged. — Ed. 


PEOPLE   V.   NEW  YORK  CENTRAL,   ETC.   RAILROAD.  249 

business  operations  of  the  citizens  of  New  York,  deteriorated  the 
vahie  of  many  commodities,  and  caused  a  divei'sion  of  trade  from  the 
city  ;  that  great  losses  were  caused,  and  especially  that  large  quantities 
of  perishable  goods,  by  reason  of  non-delivery,  were  destroyed,  to  the 
value  of  many  thousand  dollars;  that  a  vast  amount  of  freight,  equal, 
as  estimated,  to  360,000  tons,  was  thus  detained  or  refused  carriage ; 
that  large  numbers  of  carmen  were  detained  in  their  efforts  to  deliver 
freight,  and  the  injury  to  that  branch  of  business  is  estimated  at  not 
less  than  $50,000,  while  the  aggregate  of  injuries  is  estimated  at  some 
millions.  These  are  the  substantial  facts  conceded  by  the  respondents 
at  the  Special  Term.  Surely,  it  cannot  be  doubted  that  these  facts, 
being  true  and  unexcused,  showed  a  strong  case  for  the  interference  of 
the  State. 

The  only  question  is,  whether  the  course  and  conduct  of  the  respond- 
ents was  so  far  excused  by  anything  appearing  in  the  petition  and 
affidavits  that  the  court  was  justified  in  denying  the  motion  for  the 
writ  on  its  merits,  or  in  a  wise  exercise  of  its  judicial  discretion. 

The  excuse  appears  only  in  the  statements  of  the  reasons  assigned 
by  the  respondents  for  their  refusal  to  accept,  transport,  and  deliver 
the  freight  and  property.  In  the  petition  it  is  stated  in  these  words, 
"that  the  persons  in  their  employ  handling  such  freight  refuse  to  per- 
form their  work  unless  some  small  advance,  said  to  be  three  cents  per 
hour,  is  paid  them  by  the  said  railroad  corporation.  "  The  affidavits 
show,  it  maj^  in  short  be  said,  that  the  skilled  freight  handlers  of  the 
respondents,  who  had  been  working  at  the  rate  of  seventeen  cents  per 
hour  (or  one  dollar  and  seventy  cents  for  ten  hours),  refused  to  work 
unless  twenty  cents  per  hour,  or  two  dollars  per  day  of  ten  hours, 
were  paid,  and  that  their  abandonment  of  the  work,  and  the  inefficiency 
of  the  unskilled  men  afterwards  employed,  caused  the  neglect  and 
refusal  complained  of. 

It  is  not  alleged  or  shown  that  the  workmen  committed  any  unlaw- 
ful act,  and  no  violence,  no  riot,  and  no  unlawful  interference  with 
other  emplo3"ees  of  the  respondents  appear.  It  is  urged  in  effect  that 
the  court  should  regard  the  case  as  one  of  unlawful  duress,  caused  by 
some  breach  of  law  sufficiently  violent  to  prevent  the  reception  and 
transportation  of  freight.  There  is  nothing  in  the  papers  to  justify 
this  contention.  According  to  the  statements  of  the  case,  a  body  of 
laborers,  acting  in  concert,  fixed  a  price  for  their  labor,  and  refused 
to  work  at  a  less  price.  The  respondents  fixed  a  price  for  the  same 
labor,  and  refused  to  pay  more.  In  doing  this  neither  did  an  act 
violative  of  any  law,  or  subjecting  either  to  any  penalty.  The  respond- 
ents had  a  lawful  right  to  take  their  ground  in  respect  of  the  price  to 
be  paid,  and  adhere  to  it,  if  they  chose ;  but  if  the  consequence  of 
doing  so  were  an  inability  to  exercise  their  corporate  franchises  to  the 
great  injury  of  the  public,  they  cannot  be  heard  to  assert  that  such 
consequence  must  be  shouldered  and  borne  by  an  innocent  publip,  who 
neither  directly  nor  indirectly  participated  in  their  causes. 


250  PEOPLE   V.   NEW  YORK  CENTRAL,  ETC.   RAILROAD. 

If  it  had  been  shown  that  a  "  strike  "  of  their  skilled  laborers  had 
been  caused  or  compelled  b}'  some  illegal  combination  or  organized 
bod}',  which  held  an  unlawful  control  of  their  actions,  and  sought 
through  them  to  enforce  its  will  upon  the  respondents,  and  that  the 
respondents,  in  resisting  such  unlawful  efforts,  had  refused  to  obey 
unjust  and  illegal  dictation,  and  had  used  all  the  means  in  their  power 
to  employ  other  men  in  sufficient  numbers  to  do  the  work,  and  that  the 
refusal  and  neglect  complained  of  had  grown  out  of  such  a  state  of 
facts,  a  very  diflferent  case  for  the  exercise  of  the  discretion  of  the 
court,  as  well  as  of  the  attorney-general,  would  have  been  presented. 
Whether  such  a  state  of  facts  could  have  been  shown  or  not  we  cannot 
judicially  know.  The  present  case  must  stand  or  fall  upon  the  papers 
before  us;  and  we  are  not  to  be  swerved  from  thus  disposing  of  it  by 
any  suggestion  of  facts  not  in  the  case  which  might  lead,  if  they  ap- 
peared, to  some  other  result.  The  most  that  can  be  found  from  the 
petition  and  affidavits  is  that  the  skilled  freight  handlers  of  the  re- 
spondents refused  to  work  without  an  increase  of  wages  to  the  amount 
of  three  cents  per  hour ;  that  the  respondents  refused  to  pay  such 
increase ;  that  the  laborers  then  abandoned  the  work,  and  that  the 
respondents  did  not  procure  other  laborers  competent  or  sufficient  in 
number  to  do  the  work,  and  so  the  numerous  evils  complained  of  fell 
upon  the  public,  and  were  continuous  until  the  people  felt  called  upon 
to  step  in  and  seek  to  remedy  them  by  proceedings  for  mandamus. 

These  facts  reduce  the  question  to  this :  Can  railroad  corporations 
refuse  or  neglect  to  perform  their  public  duties  upon  a  controversy 
with  their  employees  over  the  cost  or  expense  of  doing  them?  We 
think  this  question  admits  of  but  one  answer.  The  excuse  has  in  law 
no  validity.  The  duties  imposed  must  be  discharged  at  whatever  cost. 
They  cannot  be  laid  down  or  abandoned  or  suspended  without  the 
legally  expressed  consent  of  the  State.  The  trusts  are  active,  poten- 
tial, and  imperative  and  must  be  executed  until  lawfully  surrendered, 
otherwise  a  public  highway  of  great  utility  is  closed  or  obstructed 
without  any  process  recognized  by  law.  This  is  something  no  public 
officer  charged  with  the  same  trusts  and  duties  in  regard  to  other  pub- 
lic highways  can  do  without  subjecting  himself  to  mandamus  or  indict- 
ment. 

We  are  not  able  to  perceive  the  difficulties  that  embarrassed  the 
court  below  as  to  the  form  of  a  writ  of  mandamus  in  such  cases.  It 
is  true  the  writ  must  be  specific  as  to  the  thing  to  be  done ;  but  the 
thing  to  be  done  in  this  case  was  to  resume  the  duties  of  carriers  of  the 
goods  and  property  offered  for  transportation  ;  that  is,  to  receive,  carr}', 
and  deliver  the  same  under  the  existing  rules  and  regulations  as  the 
business  had  been  accustomed  to  be  done.  There  was  no  necessity  to 
specify  what  kind  of  goods  should  be  first  received  and  carried,  or 
whose  goods,  or  indeed  to  take  any  notice  of  the  details  of  the  estab- 
lished usages  of  the  companies.  It  was  the  people  who  were  invoking 
the  writ  on  their  own  behalf  and  not  for  some  private  suitor,  or  to  re- 


TOLEDO,  ETC.   RY.   CO.   V.   PENNSYLVANIA  CO.  251 

dress  individual  injuries.  Tlie  prayer  of  the  petition  indicated  the 
proper  form  of  the  writ.  Upon  the  return  to  the  writ  all  questions, 
whether  what  has  been  done  is  a  suflScient  compliance  with  its  com- 
mand, may  properly  arise  and  become  a  subject  of  further  considera- 
tion. People  ex  rel.  Green  v.  D.  and  C.  R.  R.  Co.,  58  N.  Y.  152, 
160,  161.  They  need  not  have  been  anticipated.  It  is  suggested 
that  the  time  has  now  passed  when  such  a  writ  can  be  of  any  valuable 
effect.  This  is  probably  so,  but  we  are  governed  by  the  record  in 
disposing  of  the  appeal  and  not  by  subsequentl}'  occurring  events. 

The  appellants  labor  now  under  a  judgment  alleged  to  be  injurious 
to  the  rights  they  possessed  when  it  was  pronounced,  and  harmful  to 
them  as  a  precedent.  If  erroneous  they  are  entitled  to  have  that  judg- 
ment reversed,  and  to  be  indemnified,  in  the  discretion  of  the  court,  for 
the  costs  incurred  on  the  appeal  made  necessary  by  the  error. 

We  think  the  court  below  had  p^wer  to  award  the  writ,  and  that 
upon  the  case  presented  it  was  error  to  refuse  it. 

The  order  should  be  reversed,  with  the  usual  costs,  and  an  order 
entered,  if  deemed  advisable  from  any  existing  circumstances  b}'  the 
attorney-general,  awarding  the  writ. 

Daniels  and  Brady,  JJ.,  concurred. 

Orders  reversed,  with  ten  dollars  costs  and .  disbursements  in  each 
case.^ 


TOLEDO,  A.  A.  AND  N.  M.  RY.  CO.  v.  PENNSYLVANIA  CO. 

Circuit  Court  of  the  United  States,  1893. 

[54  Fed.  Rep.  746.2] 

In  equity.  Bill  by  the  Toledo,  Ann  Arbor  and  North  Michigan  Rail- 
way Company  against  Albert  G.  Blair,  Jacob  S.  Morris,  the  Pennsylva- 
nia Company,  the  Lake  Shore  and  Michigan  Southern  Railway  Company, 
and  others,  to  enjoin  respondents  from  refusing  to  extend  to  complainant 
the  same  equal  facilities  as  to  others  for  the  exchange  of  interstate 
traffic.  The  injunction  was  issued,  served  upon  the  Lake  Shore  and 
Michigan  Southern  Railway  Company,  and  brought  to  the  notice  of  its 
employees  by  publication.  Heard  on  application  by  said  company  for 
an  order  attaching  Clark,  Case,  Rutger,  and  Lennon,  its  employees,  for 
contempt  in  violating  the  injunction.     Granted  as  to  Lennon. 

Ricks,  District  Judge.  .  .  .  This  order  was  served  upon  the  several 
defendants,  and  the  Lake  Shore  and  Michigan  Southern  Railroad, 
through  its  general  superintendent,  Mr.  Canniff,  made  publication  of  the 

1  Compare :  Lake  Shore,  &c.  R.  R.  v.  Bennett,  89  Ind.  457  ;  Indianapolis,  &c.  R.  R. 
V.  Juntgen,  10  111.  App.  295  ;  Geismer  v.  Lake  Shore  &c.  R.  R.,  102  N.  Y.  563;  Hall 
V.  Pennsylvania  R.  R.,  14  Phila.  414.  —  Ed. 

2  This  case  is  abridged.  —  Ed. 


252  TOLEDO,  ETC.    RY.   CO.   V.   PENNSYLVANIA  CO. 

order  in  sach  way  as  to  bring  it  to  the  attention  of  its  employees,  and 
particular!}'  to  those  of  its  engineers  driving  engines  on  the  Detroit 
division,  where  the  interchauge  of  cars  with  the  Ann  Arbor  road  was 
frequent.  On  the  18th  of  March  an  affidavit  made  by  the  superin- 
tendent of  the  Michigan  division  of  the  Lake  Shore  and  Michigan 
Southern  Railroad  was  filed,  alleging  that  certain  of  its  emplo3ees, 
while  in  the  service  of  said  company,  and  with  full  notice  and  knowl- 
edge of  the  injunction  theretofore  made,  had  refused  to  obey  the  orders 
of  the  court,  and  upon  that  affidavit  an  application  was  made  by  said 
company  for  an  attachment  to  issue  against  the  employees  so  named, 
*'as  being  in  contempt  of  the  restraining  order  of  the  court."  The 
couil  declined  to  make  the  order  in  the  form  applied  for,  but  directed 
one  to  be  entered  requiring  the  engineers  and  firemen  named  to  appear 
in  court  forthwith,  and  show  cause  why  they  should  not  be  attached  for 
contempt.  This  is  the  usual  and^well-established  practice  in  this  dis- 
trict, as  numerous  precedents  in  the  last  ten  years  will  show. 

Before  proceeding  to  pass  upon  the  evidence  as  to  whether  the  men 
now  before  the  court  under  charges  for  contempt  are  guilty  or  not,  it 
may  be  profitable  to  consider  the  general  principles  of  law  applicable 
to  the  duties  with  which  the  accused  were  charged  by  the  orders  issued 
to  them  and  to  their  emplojers.  They  were  in  the  employ  of  the  de- 
fendant the  Lake  Shore  and  Michigan  Southern  Railroad  at  the  time 
the  orders  in  this  case  were  made,  compelling  it  to  receive  from  the  Ann 
Arbor  road  all  interstate  freight  it  might  tender.  The  testimon}'  shows 
that  the  terms  of  this  order  were  made  known  to  the  employees  gen- 
erally, and  that  they  were  thoroughly  advised  of  its  scope  and  manda- 
tor}' provisions.  That  their  emploj'er  was  obligated,  both  under  the 
general  provisions  of  the  interstate  commerce  law  and  under  this  order 
of  the  court,  to  receive  and  haul  all  interstate  freight,  must  have  been 
known  to  them.  They  must  also  be  held  to  have  known  that  the  pen- 
alties of  the  law  were  severe  in  case  their  employer  violated  either  the 
law  or  the  order  of  the  court.  Holding  to  that  employer,  so  engaged 
in  this  great  public  undertaking,  the  relation  they  did,  the}'  owed  to 
him  and  to  the  public  a  higher  duty  than  though  their  service  had  been 
due  to  a  private  person.  They  entered  its  service  with  full  knowledge 
of  the  exacting  duties  it  owed  to  the  public.  They  knew  that  if  it 
failed  to  comply  with  the  laws  in  any  respect  severe  penalties  and  losses 
would  follow  for  such  neglect.  An  implied  obligation  was  therefore 
assumed  by  the  employees  upon  accepting  service  from  it  under  such 
conditions  that  they  would  perform  their  duties  in  such  manner  as  to 
enable  it  not  only  to  discharge  its  obligations  faithfully,  but  also  to  pro- 
tect it  against  irreparable  losses  and  injuries  and  excessive  damages  by 
any  acts  of  omission  on  their  part.  One  of  these  implied  conditions 
on  their  behalf  was  that  they  would  not  leave  its  service  or  refuse  to 
perform  their  duties  under  circumstances  when  such  neglect  on  their 
part  would  imperil  lives  committed  to  its  care,  or  the  destruction  of 
property  involving  irreparable  loss  and  injury,  or  visit  upon  it  severe 


TOLEDO,   ETC.    RY.   CO.   V.   PENNSYLVANIA  CO.  253 

penalties.  In  ordinary  conditions  as  between  employer  and  employee, 
the  privilege  of  the  latter  to  quit  the  former's  service  at  his  option 
cannot  be  prevented  by  restraint  or  force.  The  remedy  for  breach  of 
contract  ma^'  follow  to  tlie  employer,  but  the  employee  has  it  in  his 
power  to  arbitrarily  terminate  the  relations,  and  abide  the  consequences. 
But  these  relative  rights  and  powers  may  become  quite  different  in  the 
case  of  the  employees  of  a  great  public  corporation,  charged  by  the  law 
with  certain  great  trusts  and  duties  to  the  public.  An  engineer  and 
fireman,  who  start  from  Toledo  with  a  train  of  cars  filled  with  pas- 
sengers destined  for  Cleveland,  begin  that  journey  under  contract  to 
drive  their  engine  and  draw  the  cars  to  the  destination  agreed  upon. 
Will  it  be  claxmed  that  this  engineer  and  fireman  could  quit  their  em- 
ployment when  the  train  is  part  way  on  its  route,  and  abandon  it  at 
some  point  where  the  lives  of  the  passengers  would  be  imperilled,  and 
the  safety  of  the  propert}'^  jeopardized  ?  The  simple  statement  of  the 
proposition  carries  its  own  condemnation  with  it.  The  very  nature  of 
their  service,  involving  as  it  does  the  custody  of  human  life,  and  the 
safetj'  of  millions  of  property',  imposes  upon  them  obligations  and  duties 
commensurate  with  the  character  of  the  trusts  committed  to  them. 
They  represent  a  class  of  skilled  laborers,  limited  in  number,  whose 
places  cannot  always  be  supplied.  The  engineers  on  the  Lake  Shore 
and  Michigan  Southern  Railroad  operate  steam  engines  moving  over  its 
different  divisions  2,500  cars  of  freight  per  day.  These  cars  carry 
supplies  and  material,  upon  the  delivery  of  which  the  labor  of  tens  of 
thousands  of  mechanics  is  dependent.  They  transport  the  products  of 
factories  whose  output  must  be  speedil}'  carried  away  to  keep  their  em- 
ployees in  labor.  The  suspension  of  work  on  the  line  of  such  a  vast 
railroad,  by  the  arbitrar}'  action  of  the  bod}'  of  its  engineers  and  fire- 
men, would  paralyze  the  business  of  the  entire  countr}',  entailing  losses, 
and  bringing  disaster  to  thousands  of  unoffending  citizens.  Contracts 
would  be  broken,  perishable  property  destroyed,  the  travelling  public 
embarrassed,  injuries  sustained,  too  many  and  too  vast  to  be  enumer- 
ated. All  these  evil  results  would  follow  to  the  public  because  of  the 
arbitrary  action  of  a  few  hundred  men,  who,  without  any  grievance  of 
their  own,  without  an}'  dispute  with  their  own  employer  as  to  wages  or 
hours  of  service,  as  appears  from  the  evidence  in  this  case,  quit  their 
employment  to  aid  men,  it  may  be,  on  some  road  of  minor  importance, 
who  have  a  difference  with  their  employer  which  they  fail  to  settle  by 
ordinary  methods.  If  such  ruin  to  the  business  of  emplojers,  and  such 
disasters  to  thousands  of  the  business  public,  who  are  helpless  and  inno- 
cent, is  the  result  of  conspirac}',  combination,  intimidation,  or  unlawful 
acts  of  organizations  of  employees,  the  courts  have  the  power  to  grant 
partial  relief,  at  least  by  restraining  employees  from  committing  acts  of 
violence  or  intimidation,  or  from  enforcing  rules  and  regulations  of 
organizations  which  result  in  irremediable  injuries  to  their  employers 
and  to  the  public.  It  is  not  necessary,  for  the  purposes  of  this  case,  to 
undertake  to  define  with  greater  certainty  the  exact  relief  which  such 


2o4  PORTLAND   NATURAL  GAS  AND   OIL   CO.    P.   STATE. 

cases  may  properly  invoke ;  but  that  the  necessities  growing  out  of  tlie 
vast  and  rapidly  multiplying  interests  following  our  extending  railwa}- 
business  make  new  and  correspond ingl}'  efficient  measures  for  relief 
essential  is  evident,  and  the  courts,  in  the  exercise  of  their  equity  juris- 
diction, must  meet  the  emergencies,  as  far  as  possible,  within  the  limits 
of  existing  laws,  until  needed  additional  legislation  can  be  secured.^ 

Granted  as  to  Lennon. 


PORTLAND  NATURAL  GAS  AND  OIL  COMPANY  u  STATE. 
Supreme  Court  of  Indiana,  1893. 

[135  Ind.  54.] 

From  the  Jay  Circuit  Court. 

Coffey,  J.  This  was  an  action  by  the  appellee  against  the  appellant, 
to  compel  the  latter  by  mandamus  to  supply  the  residence  of  the  re- 
lator with  natural  gas,  tQ  be  used  for  lights  and  fuel. 

It  appears,  from  the  complaint,  that  the  appellant  is  a  corporation, 
duly  organized  under  the  laws  of  this  State,  for  the  purpose,  among 
others,  of  supplying  to  those  within  its  reach  natural  gas,  to  be  used 
for  lights  and  fuel.  By  permission  of  the  common  council  it  has  laid 
its  pipes,  for  that  purpose,  in  the  streets  and  alleys  of  the  city  of 
Portland,  in  this  State,  and  has  pipes  laid  in  Walnut  Street,  of  that 
city.  The  relator  resides  on  Walnut  Street,  on  the  line  of  one  of  the 
appellant's  main  pipes.  His  house  is  properly  and  safely  plumbed  for 
the  purpose  of  obtaining  natural  gas. 

In  May,  1890,  the  relator  demanded  of  the  appellant  gas  service,  and 
tendered  to  it  the  usual  and  proper  charges  for  such  service,  but  it  re- 
fused, by  its  officers,  to  furnish  the  gas  demanded,  whereupon  this  suit 
was  brought  to  compel  it  to  furnish  the  gas  desired  by  the  relator. 

The  court  overruled  a  demurrer  to  the  complaint.  It  also  sustained 
a  demurrer  to  the  second,  third,  and  fourth  paragraphs  of  the  answer 
filed  by  the  appellant.  Over  a  motion  for  a  new  trial,  the  court 
awarded  a  peremptory  writ  against  the  appellant,  requiring  it  to  fur- 
nish the  relator  with  gas,  as  prayed  in  the  complaint. 

These  several  rulings  are  assigned  as  error. 

Very  many  of  the  objections  ui^ed  against  the  complaint  go  to  the 

1  Compare:  Trnat  Co.  v.  No.  Pacific  R.  R.,  60  Fed.  80.3 ;  U.  S.  v.  Elliot,  62  Fed.  801 ; 
Re  Phelan,  62  Fed.  803  ;  Arthur  v.  Oakea,  63  Fed.  310 ;  In  re  Deta,  158  U.  S.  564.— Ed. 


PORTLAND   NATURAL    GAS    AND    OIL   CO.    V.    STATE.  255 

question  of  its  uncertainty,  and  are  technical  in  character.  It  has 
been  so  often  decided  that  a  demurrer  is  not  the  remed}'  for  uncertainty 
that  we  need  not  cite  authority'  upon  the  subject. 

The  vital  question  in  the  case  relates  to  the  right  of  the  relator  to 
compel  the  appellant,  by  mandamus,  to  supply  his  dwelling  house  with 
natural  gas  for  lights  and  fuel. 

There  are  cases  which  hold  that  in  the  absence  of  a  contract,  ex- 
press or  implied,  and  where  the  charter  of  the  companj'  contains  no 
provision  upon  the  subject,  a  gas  company  is  under  no  more  obligation 
to  continue  to  supply  its  customers  than  the  vendor  of  other  merchan- 
dise, among  which  is  the  case  of  Commonwealth  v.  Lowell  Gas  Light 
Co.,  12  Allen,  75  ;  Ijut  we  think  the  better  reason,  as  well  as  the  weight 
of  authorit}',  is  against  this  holding. 

Mr.  Beach,  in  his  work  on  private  corporations,  volume  2,  section 
835,  sa^'s:  "Gas  companies,  being  engaged  in  a  business  of  a  public 
character,  jtre  charged  with  the  performance  of  public  duties.  Their 
use  of  the  streets,  whose  fee  is  held  by  the  municipal  corporation,  in 
trust  for  the  benefit  of  the  public,  has  been  likened  to  the  exercise  of 
the  power  of  eminent  domain.  Accordinglj*,  a  gas  company  is  bound 
to  supply  gas  to  premises  with  which  its  pipes  are  connected. " 

Mr.  Cook,  in  his  work  on  Stock  and  Stockholders,  section  674  (2d 
ed.),  says :  "  Gas  companies,  also,  are  somewhat  public  in  their  nature, 
and  owe  a  duty  to  supply  gas  to  all. " 

To  the  same  effect  are  the  following  adjudicated  cases:  State  v. 
Columbus  Gas,  &c.  Co.,  34  Oh.  St.  572 ;  New  Orleans,  &c.  Co.  v. 
Louisiana  Light  Co.,  115  U.  S.  650;  People,  ex  rel.,  v.  Manhattan, 
«&c.  Co.,  45  Barb.  136;  Gibbs  v.  Consolidated  Gas  Co.,  130  U.  S. 
396  ;  Williams  u.  Mutual  Gas  Co.,  52  Mich.  499  ;  In  re  Rochester 
Natural  Gas,  &c.  Co.  v.  Richardson,  63  Barb.  437. 

Our  General  Assembl}-,  recognizing  the  fact  that  natural  gas  com- 
panies were,  in  a  sense,  public  corporations,  conferred  upon  them  the 
right  of  eminent  domain,  by  an  act  approved  Februai-y  20,  1889,  Acts 
1889,  p.  22. 

It  has  often  been  held  that  mandamus  is  the  proper  proceeding  by 
which  to  compel  a  gas  company  to  furnish  gas  to  those  entitled  to  re- 
ceive it.  8  Am.  and  Eng.  Encyc.  of  Law,  1284-1289  ;  People  v.  Man- 
hattan Gas  Light  Co.,  supra;  Williams  v.  Mutual  Gas  Co.,  supra; 
Rochester  Natural  Gas,  &c.  Co.  v.  Richardson,  supra. 

In  view  of  these  authorities,  we  are  constrained  to  hold  that  a  nat- 
ural gas  company,  occupying  the  streets  of  a  town  or  cit}-  with  its 
mains,  owes  it  as  a  duty  to  furnish  those  who  own  or  occupy  the  houses 
abutting  on  such  street,  where  such  owners  or  occupiers  make  the 
necessary  arrangements  to  receive  it  and  comply  with  the  reasonable 
regulations  of  such  company,  such  gas  as  they  ma}'  require,  and  that, 
where  it  refuses  or  neglects  to  perform  such  duty,  it  may  be  compelled 
to  do  so  b}'  writ  of  mandamus.  As  to  the  sufficiency  of  an  answer 
averring  that  the  company  had  not  a  sufficient  supply  to  furnish  all 


256  PORTLAND   NATUEAL  GAS   AND   OIL  CO.   V.   STATE. 

those  demanding  gas,  we  intimate  no  opinion,  as  no  such  defence  was 
interposed  in  this  case. 

It  follows  that  the  complaint  in  this  case  states  a  cause  of  action 
against  the  appellant,  and  that  the  court  did  not  err  in  overruling  the 
demurrer  thereto. 

The  second  paragraph  of  the  answer  avers  that  at  the  time  of  the 
demand  for  gas  alleged  in  the  complaint,  the  relator  was  being  fur- 
nished with  natural  gas  by  the  Citizens'  Natural  Gas  and  Oil  Min- 
ing Company,  of  Portland,  Indiana,  and  that  said  company  has  ever 
since  continued  to  furnish  him  with  gas  for  fuel  and  lights,  and  is 
read}'  and  willing  to  continue  doing  so,  so  long  as  he  may  pay  for  the 
same.  , 

The  third  paragraph  avers  that  the  relator  has  no  interest  in  the  ap- 
pellant, except  what  he  may  have  and  hold  under  the  laws  of  the  State 
in  common  with  all  other  citizens  of  the  city  of  Portland,  as  shown  by 
the  allegations  in  the  complaint. 

The  fourth  paragraph  avers  that  the  demand  which  the  relator  alleges 
he  made  on  the  appellant  to  furnish  him  natural  gas  is  couched  in  gen- 
eral terms  merely,  and  is  not  express  and  distinct,  and  does  not  clearly 
designate  the  precise  thing  which  is  required,  but  is  vague,  indefinite, 
and  uncertain,  as  shown  by  the  facts  alleged  in  the  complaint. 

It  is  contended  by  the  appellant,  in  support  of  the  second  paragraph 
of  its  answer,  that  in  view  of  the  facts  therein  averred  it  could  not 
comply  with  the  demand  of  the  relator  without  a  violation  of  the  pro- 
visions of  an  act  of  the  General  Assembl}',  approved  March  9,  1891, 
Acts  1891,  p.  381. 

It  would  seem  to  be  a  sufficient  answer  to  this  contention  to  say  that 
it  does  not  appear,  by  any  averment  in  this  answer,  that  it  was  neces- 
sary to  change,  extend,  or  alter  any  service  or  other  pipe  or  attach- 
ment belonging  to  the  Citizens'  Natural  Gas  and  Oil  Mining  Company, 
in  order  to  supply  the  relator  with  the  gas  he  demanded.  For  any- 
thing appearing  from  this  answer,  the  gas  required  by  the  relator  from 
the  appellant  could  have  been  furnished  without  interfering  with  that 
company.  But  if  it  appeared  otherwise,  we  would  not  be  disposed  to 
place  a  construction  upon  that  act,  which  would  give  a  gas  company 
furnishing  unsatisfactory  service,  or  charging  an  unsatisfactory  price 
for  its  service,  the  perpetual  right  to  furnish  gas  to  a  particular  building 
because  it  had  been  permitted  to  attach  its  appliances  for  the  purpose 
of  furnishing  gas. 

In  our  opinion,  the  court  did  not  err  in  sustaining  a  demurrer  to  this 
answer. 

The  third  paragraph  of  the  answer  was  wholly  insufficient  to  bar  the 
relator's  cause  of  action.  It  was  not  necessary  that  he  should  own 
an  interest  in  the  appellant,  different  from  that  held  by  other  citizens 
of  the  city  of  Portland.  It  was  sufficient  that  the  appellant  owed  him 
a  duty,  in  common  with  other  citizens,  to  furnish  him  gas,  which  duty 
it  had  refused  to  perform. 


PEOPLE   EX   REL.   V.   HUDSON   RIVER   TELEPHONE   CO.  257 

The  fourth  paragraph  of  the  answer  states  no  issuable  fact,  and  is 
clearly  bad. 

The  evidence  in  the  cause  tends  to  support  the  finding  of  the  Circuit 
Court,  and  we  cannot,  for  that  reason,  disturb  the  finding  on  the  evi- 
dence. 

There  is  no  error  in  the  record  for  which  the  judgment  of  the  Circuit 
Court  should  be  reversed. 

Judgment  ajffirmed.^ 


PEOPLE  EX   REL.  POSTAL  TELEGRAPH   CO.    v.   HUDSON 
RIVER  TELEPHONE   CO. 

Supreme  Court,  New  York,  1887. 

[19  Abb.  N.  C.  466.1] 

Parker,  J.     The  relator  is  engaged  in  the  transmission  of  messages 
by  telegraph ;  the  defendant,  in  the  transmission  of  human  speech  by 
1  Opinion  only  is  printed.  —  Ed. 
17 


258  PEOPLE  EX   REL.    V.   HrDSON   RIVER  TELEPHONE   CO. 

means  of  the  telephone.  In  addition,  both  relator  and  defendant  cany 
on  a  general  messenger  business  in  the  city  of  Albany,  and  each  are 
duly  organized  under  and  by  virtue  of  statutes  of  this  State. 

By  the  moving  papers  it  appears  that  the  relator  demanded  of  the 
defendant  that  one  of  its  telephones  be  placed  in  the  office  of  The 
Postal  Telegraph  Cable  Company,  and  at  the  same  time  offered  to  pay 
any  sum  required  for  the  privilege  of  having  and  using  such  telephone, 
and  further  promised  to  "  compl}-  with  all  the  rules  and  regulations, 
regulating  and  controlling  all  persons,  corporations,  and  companies 
having  or  using  said  telephone,"  and  that  the  defendant  refused,  and 
still  refuses,  to  comply  with  such  demand. 

Thereupon  the  relator  moved  the  court  for  a  peremptory  mandamus 
directing  the  defendant,  on  payment  to  it,  by  relator,  of  its  usual 
charges  and  compliance  with  its  proper  regulations,  to  place  one  of  its 
telephones  in  relator's  office. 

The  owner  of  a  patent  has  the  right  to  determine  whether  or  not  any 
use  shall  be  made  of  his  invention,  and,  if  any,  what  such  use  shall  be. 
When  however  he  determines  upon  its  use,  his  legal  dut}'  to  the  public 
requires  that  all  persons  shall,  in  respect  to  it,  be  treated  alike,  without 
injurious  discrimination  as  to  rates  or  conditions.  A  common  carrier 
is  bound  to  carry  all  articles  within  the  line  of  its  business,  for  all  per- 
sons upon  the  terms  usually  imposed.  Bank  v.  Adams  Express  Co., 
1  Flippin  (S.  C.)  242.  When  a  railroad  company  establishes  com- 
mutation rates  for  a  given  localit}',  it  has  no  right  to  refuse  to  sell  a 
commutation  ticket  to  a  particular  individual  of  such  locality.  Atwater 
V.  Delaware,  Lackawanna  R.  R.,  4  East.  Rep.  186.  A  gas  compan}' 
must  furnish  gas  at  the  same  rates  to  all  consumers  who  appl}'  and  are 
ready  and  willing  to  pay  therefor.  Shepard  v.  Milwaukee,  6  Wis.  539  ; 
People  ex  rel.  Kenned}'  v.  Manhaftan  Gas  Co.,  45  Barb.  136.  And 
a  telephone  company  is  not  permitted  to  withhold  facilities  for  the 
transaction  of  business  from  one  class  of  citizens  which  it  accords 
to  others.  State  ex  rel.  American  U.  T.  Co.  y.  Bell  T.  Co.,  11  Cent. 
L.  J.  359. 

The  authorities  cited  establish  the  principle  that  a  public  servant,  as 
the  defendant  is,  cannot  so  use  the  invention  protected  .by  the  govern- 
ment, as  to  withhold  from  one  citizen  the  advantages  which  it  accords 
to  another ;  and  it  follows  that  the  relator  in  this  case  on  compliance 
with  the  usual  terms,  and  reasonable  regulations  of  the  defendant,  is 
entitled  to  have  mandamus  issue  directing  the  placing  of  one  of  its 
telephones  in  relator's  office. 

The  defendant's  papers  contain  a  cop}'  of  the  agreement  which  it  re- 
quires its  subscribers  to  sign  before  giving  to  them  a  telephone  for  use, 
such  .agreement  containing  the  rules  and  regulations  which  the  defend- 
ant has  determined  must  form  a  condition  precedent  to  the  placing  or 
using  of  one  of  its  telephones. 

Upon  the  argument,  relator's  counsel  contended  that  a  portion 
thereof  was  unreasonable,  and  that  to  comply  therewith  would  sub- 


PEOPLE    EX   REL.   V.    HUDSON   RIVER   TELEPHONE   CO.  259 

stantially  deprive  his  client  from  receiving  anj-  benefit  to  its  business 
by  the  use  of  the  telephone. 

The  clauses  in  the  agreement  to  which  objection  was  made  were : 
First.  '"  They  are  not  to  be  used  for  .  .  .  any  part  of  the  work  of  col- 
lecting, transmitting,  or  delivering  any  message  in  respect  of  which 
any  toll  has  been  or  is  to  be  paid  to  any  party  other  than  the  Exchange. 
Second.     Nor  for  calling  messengers  except  from  the  Central  Office." 

As  to  the  first :  Both  parties  are  engaged  in  the  attempt  to  extend 
their  business  to  the  utmost  possible  limit.  They  are  alike  interested 
in  securing  as  many  customers  as  possible  for  their  respective  lines, 
and  to  a  considerable  extent  the}'  are  competitors  in  the  same  territory 
for  the  business  of  transmitting  messages. 

Now,  while  the  rule  is  well  settled  that  a  common  carrier  must  serve 
the  public  impartially,  still  it  must  be  Jsorne  in  mind  that  its  dut}'  is  to 
the  public,  and  not  to  other  and  competing  common  carriers.  One 
common  carrier  cannot  demand,  as  a  right,  that  it  be  permitted  to  use 
a  rival  common  carrier's  property  for  the  benefit  of  its  own  business. 
Express  Cases,  117  U.  S.  1 ;  Jencks  v.  Coleman,  2  Sumner,  221  ; 
Barry  v.  O.  B.  H.  Steamboat  Co.,  67  N.  Y.  301. 

The  relator  in  this  case,  however,  contends  that  the  statute,  under 
which  the  defendant  was  incorporated,  makes  it  the  duty  of  the  de- 
fendant to  permit  such  use  of  its  telephone  as  the  relator's  business 
requires. 

The  statute,  among  other  things,  provides  that  "it  shall  be  the 
duty  of  the  owner  or  the  association  owning  an}-  telegraph  line  doing 
business  within  this  State,  to  receive  despatches  from  and  for  other 
telegraph  lines  and  associations,  and  from  and  for  an}-  individual,  and 
on  payment  of  their  usual  charges  for  individuals,  for  transmitting 
despatches,  as  established  b}'  the  rules  and  regulations  of  such  tele- 
graph line,  to  transmit  the  same  with  impartialit}'  and  good  faith." 

It  is  clear  that  the  provision  quoted  makes  it  the  duty  of  the  defend- 
ant to  transmit  over  its  wires,  any  and  all  messages  which  the  relator 
may  desire  to  have  transmitted,  on  payment  of  their  usual  charges  to 
individuals.  It  seems  equally  clear  that  it  was  not  intended  to  and 
does  not,  authorize  the  relator  to  transmit  its  own  messages  over 
defendant's  wires,  on  payment  of  the  merely  nominal  sum  required  of 
its  ordinar}'  subscribers. 

Such  a  rule  would  result  unjustly  to  the  defendant,  as  it  would  enable 
the  relator  to  enter  into  competition  with  defendant  in  the  transmission 
of  messages  over  its  own  wires.  With  equal  propriety'  it  could  demand 
that  it  be  connected  with  the  wires  of  the  Western  Union  Telegraph 
Company,  on  payment  of  a  proper  charge,  and  that  then  it  be  per- 
mitted to  use  in  its  own  way,  and  at  its  own  convenience,  the  wires 
and  property  of  its  competitor  for  its  business. 

Such  a  construction  as  the  relator  contends  for  is  not  in  accordance 
with  either  the  letter  or  spirit  of  the  statute.  What  the  statute  com- 
mands of  corporations  doing  business  in  this  State  is,  that  they  shall 


260  PEOPLE   EX   BEL.   V.   HUDSON   RIVER   TELEPHONE  CO. 

send  any  message  presented  by  another  telegi-aph  company,  for  that 
purpose,  on  payment  of  the  proper  and  usual  charges.  Should  defend- 
ant refuse  at  any  time  to  send  a  message  presented  by  the  relator  for 
that  purpose,  the  law  affords  an  adequate  remedy  for  the  violation  of 
the  statute.  No  claim  is  made  that  the  defendant  has  ever  refused  to 
send  messages  for  the  relator,  and  the  only  question  in  respect  to  the 
transmission  of  messages  in  controvers}'  here  is.  Can  the  relator 
demand  the  right  to  transmit  them  according  to  its  own  pleasure? 
Neither  the  rules  established  by  the  courts,  nor  the  statute  referred  to 
justify  such  a  holding,  and  in  that  respect,  therefore,  the  rules  and  reg- 
ulations of  the  defendant  seem  to  be  reasonable  and  proper. 

The  objection  that  so  much  of  defendant's  regulations  as  prevents 
the  use  of  the  telephone  by  a  subscriber  for  the  purpose  of  calling 
messengers  except  from  the  Central  office,  is  unreasonable,  seems  to 
me  to  be  well  taken.  The  defendant  urges  that  the  messenger  business 
as  conducted  by  it  is  profitable,  and  for  that  reason  it  is  desirable  that 
it  should  be  retained  as  free  from  competition  as  possible  ;  and  in  aid 
of  its  position  invokes  the  rule  as  established  by  the  courts,  that  it 
owes  no  such  duty  to  its  rival  as  the  permission  to  use  its  property  for 
the  purpose  of  a  competing  business,  would  constitute.  The  rule  can- 
not be  questioned,  but  the  application  is  faulty.  The  messenger  busi- 
ness, although  carried  on  by  the  same  company  and  at  the  same  offices, 
is  nevertheless  a  distinct  and  separate  business,  and  in  nowise  essen- 
tial to  the  conduct  of  the  defendant's  system  of  transmitting  messages 
by  telephone,  for  which  purpose  it  was  incorporated.  To  extend  the 
rule  protecting  its  business  from  rivals,  so  as  to  include  any  other 
business  in  which  it  might  see  fit  to  engage,  could  result  in  great  in- 
justice to  the  public.  A  liver}*  stable,  provision  store,  meat  market, 
and  other  classes  of  business  could  be  added  in  the  course  of  time,  and 
hy  amending  their  rules  so  as  to  include  each  new  business  in  the  same 
manner  as  the  messenger  service  is  now  attempted  to  be  protected,  a 
monopoly  could  be  created  at  the  expense  of  tradesmen  and  merchants, 
and  to  the  detriment  of  the  public  generally. 

In  Louisville  Transfer  Co.  v.  Am.  Dist.  Tel.  Co.,  24  Alb.  L.  J.  283- 
284,  both  parties  were  engaged  in  the  carriage  and  coup^  service,  and 
the  defendant  insisted  upon  the  right  to  a  monopoly  in  the  use  of  its 
own  telephone  methods  of  communicating  and  receiving  orders  for 
coupes.  The  court  held  otherwise,  and  granted  an  injunction  restrain- 
ing defendant  from  removing  the  telephone,  and  from  refusing  to 
transact  plaintiff's  business.  The  decision  of  the  court  in  that  case  is 
applicable  to  the  question  here  involved,  and  its  reasoning  is  approved.  . 

It  follows  :  First.  That  the  relator  is  entitled  to  a  mandamus  direct- 
ing and  commanding  the  defendant  to  place  a  telephone  in  its  office  on 
compliance  with  defendant's  rules  and  regulations,  and  payment  by  it 
of  defendant's  proper  charges. 

Second.  That  so  much  of  defendant's  regulations  as  provide  that 
the  telephone  shall  not  be  used  '^for  calling  messengers  except  from 


CHESAPEAKE   AND   POT.   TEL.   CO.   V.   BAL.   AND   OHIO   TEL.  CO.      261 

the  Central  Office,"  are  unreasonable,  and  need  not  be  acceded  to  by 
the  relator. 

Third.  As  it  was  stated  upon  the  argument  that  a  review  of  the 
decision  was  intended,  an  application  for  a  stay  under  section  2,089, 
Code  Civ.  Pro.,  will  be  entertained. 


CHESAPEAKE    AND    POTOMAC   TELEPHONE   CO.   v.   BAL- 
TIMORE AND   OHIO  TELEGRAPH   CO. 

Court  of  Appeals,  Maryland,  1887. 

[66  Maryland,  399.1] 

Alvet,  C.  J.  This  was  an  application  by  the  appellee,  a  telegraph 
company,  to  the  court  below  for  a  mandamus,  which  was  accordingly 
ordered,  against  the  appellant,  another  telegraph  companj-,  but  doing 
a  general  telephone  business. 

The  appellant  appears  to  be  an  auxiliary  company,  operating  the 
Telephone  Exchange  under  the  patents  known  as  the  Bell  patents. 
Those  patents,  formerly  held  b}'  the  National  Bell  Telephone  Com- 
pany, are  now  held  by  the  American  Bell  Telephone  Companj-,  a  cor- 
poration created  under  the  law  of  the  State  of  Massachusetts.  The 
patents,  with  the  contracts  relating  thereto,  were  assigned  by  the 
former  to  the  latter  compan}',  prior  to  the  23d  of  May,  1882,  and  it 
is  under  a  contract,  of  the  date  just  mentioned,  that  the  appellant 
acquired  a  right  to  use  the  patented  devices  in  the  operation  of  its 
S3'stem  of  telephonic  exchanges. 

In  the  agreed  statement  of  facts,  it  is  admitted  that  all  the  tele- 
phones used  b}'  the  Chesapeake  and  Potomac  Telephone  Company  (a 
company  to  which  the  appellant  is  an  auxiliary  organization),  and  also 
all  the  telephones  used  by  the  appellant  in  its  Exchange  in  the  Citj'  of 
Baltimore,  and  elsewhere  in  the  State,  are  the  property  of  the  Ameri- 
can Bell  Telephone  Company.  It  is  alleged  by  the  appellee  and 
admitted  by  the  appellant,  that  the  offices  of  the  Western  Union  Tele- 
graph Company  of  Baltimore  City  are  connected  with  the  Telephone 
Exchange  of  the  appellant,  and  that  when  a  subscriber  to  the  Tele- 
phone Exchange  wishes  to  send  a  message  by  way  of  the  lines  of  the 
Western  Union  Telegraph  Company,  the  subscriber  calls  up  the  Tele- 
phone Exchange,  and  the  agent  there  connects  him  with  the  office  of 
the  Western  Union  Telegraph  Company,  and  the  subscriber  thereupon 
telephones  his  message  over  the  lines  of  the  appellant,  to  the  Western 
Union  Telegraph  office ;  and  a  like  process  is  repeated  when  a  message 
is  received  by  the  Western  Union  Telegraph  Company  for  a  subscriber 
to  the  Telephone  Exchange  of  the  appellant.     The  appellee  is  a  com- 

^  Part  of  the  opinion  only  is  given.  —  Ed. 


262      CHESAPEAKE   AND   POT.    TEL.   CO.   V.   BAL.   AND   OHIO  TEL.   CO. 

peting  compan}',  in  the  general  telegraph  business,  with  the  "Western 
Union  Telegraph  Company.  And  being  such,  it  made  application  to 
the  appellant  to  have  a  telephone  instrument  placed  in  its  receiving 
room  in  Baltimore,  and  that  the  same  might  be  connected  with  the 
Central  Exchange  of  the  appellant  in  that  city ;  so  that  the  appellee 
might  be  placed  upon  the  same  and  equal  footing  with  the  Western 
Union  Telegraph  Company,  in  conducting  its  business.  This  request 
was  refused,  unless  the  connection  be  accepted  under  certain  condi- 
tions and  restrictions,  to  be  specially  embodied  in  a  contract  between 
the  two  companies,  and  which  conditions  and  restrictions  do  not  apply 
in  the  case  of  the  Western  Union  Telegraph  Company. 

It  appears  that  there  were  conflicting  claims  existing  as  to  priority 
of  invention,  and  alleged  infringement  of  patent  rights,  which  were 
involved  in  a  controversj*  between  the  Western  Union  Telegraph  Com- 
pany and  others,  and  the  National  Bell  Telephone  Company',  to  whose 
rights  the  American  Bell  Telephone  Company  succeeded  ;  and  in  order 
to  adjust  those  conflicting  pretensions,  the  contract  of  the  10th  of  Nov., 
1879,  was  entered  into  b}'  the  several  parties  concerned.  The  contract 
is  very  elaborate,  and  contains  a  great  variet}*  of  provisions.  By  this 
agreement,  with  certain  exceptions,  tlie  National  Bell  Telephone  Com- 
pan}'  was  to  acquire  and  become  owner  of  all  the  patents  relating  to 
telephones,  or  patents  for  the  transmission  of  articulate  speech  by 
means  of  electricity.  But  while  it  was  expressly  stipulated  (Art.  13, 
cl.  1)  that  the  right  to  connect  district  or  exchange  systems,  and  the 
right  to  use  telephones  on  all  lines,  should  remain  exclusivel}'  with  the 
National  Bell  Telephone  Company  (subsequently  the  American  Bell 
Telephone  Company),  and  those  licensed  by  it  for  the  purpose,  it  was 
in  terms  provided  that  "  such  connecting  and  other  lines  are  not  to 
be  used  Sot  the  transmission  of  general  business  messages,  market 
quotations,  or  news,  for  sale  or  publication,  in  competition  with  tho 
business  of  the  Western  Union  Telegraph  Corapan}',  or  with  that  of 
the  Gold  and  Stock  Telegraph  Company.  And  the  part}-  of  the  sec- 
ond part  [National  Bell  Teleph.  Co.],  so  far  as  it  lawfully  and  prop- 
erly can  prevent  it,  will  not  permit  the  transmission  of  such  general 
business  messages,  market  quotations,  or  news,  for  sale  or  publication, 
over  lines  owned  b}'  it,  or  by  corporations  in  which  it  owns  a  controll- 
ing interest,  nor  license  the  use  of  its  telephones,  or  patents,  for  the 
transmission  of  such  general  business  messages,  market  quotations,  or 
news,  for  sale  or  publication,  in  competition  with  such  telegraph  busi- 
ness of  the  Western  Union  Telegraph  Company,  or  that  of  the  Gold 
and  Stock  Telegraph  Company."  The  contract  of  the  23rd  of  May, 
1882,  under  which  the  appellant  derives  its  right  to  the  use  of  the 
patented  instruments,  was  made  in  subordination  to  the  prior  contract 
of  the  10th  of  Nov.,  1879,  and  contains  a  provision  to  conform  to  the 
restrictions  and  conditions  just  quoted.  In  that  subordinate  contract 
it  is  provided  that  "  no  telegraph  company,  unless  specially  permitted 
by  the  licensor,  can  be  a  subscriber,  or  use  the  system  to  collect  and 
deliver  messages  from  and  to  its  customers,"  &c. 


CHESAPEAKE  AND   POT.   TEL.   CO.   V.   BAL.   AND   OHIO   TEL.   CO.      263 

These  contracts  are  pleaded  and  relied  on  by  the  appellant  as  afford- 
ing a  full  justification  for  exacting  from  the  appellee  a  condition  in  the 
contract  of  subscription  to  the  Exchange,  that  the  latter  should  observe 
the  restrictions  in  favor  of  the  Western  Union  Telegraph  Company. 
The  appellant  contends  that  these  restrictive  conditions  in  the  con- 
tracts recited  are  binding  upon  it,  and  that  it  is  not  at  liberty  to  furnish 
to  the  appellant,  being  a  telegraph  company,  the  instruments  applied 
for  and  place  them  in  connection  with  the  Exchange,  unless  it  be  sub- 
ject to  the  restrictive  conditions  prescribed.  And  if  this  be  so,  the 
Court  below  was  in  error  in  ordering  the  mandamus  to  issue.  But  is 
the  contention  of  the  appellant  well  founded,  in  view  of  the  nature  of 
the  service  that  it  has  undertaken  to  perform? 

The  appellant  is  in  the  exercise  of  a  public  employment,  and  has 
assumed  the  duty  of  serving  the  public  while  in  that  employment.  In 
this  case,  the  appellant  is  an  incorporated  body,  but  it  makes  no  differ- 
ence whether  the  party  owning  and  operating  a  telegraph  line  or  a  tele- 
phone exchange  be  a  corporation  or  an  individual,  the  duty  imposed, 
in  respect  to  the  public,  is  the  same.  It  is  the  nature  of  the  service 
undertaken  to  be  performed  that  creates  the  dut}'  to  the  public,  and  in 
which  the  public  have  an  interest,  and  not  simply  the  body  that  may 
be  invested  with  power.  The  telegraph  and  telephone  are  important 
instruments  of  commerce,  and  their  service  as  such  has  become  indis- 
pensable to  the  commercial  and  business  public.  The}-  are  public 
vehicles  of  intelligence,  and  they  who  own  or  control  them  can  no  more 
refuse  to  perform  impartially  the  functions  that  they  have  assumed  to 
discharge,  than  a  railway  company,  as  a  common  carrier,  can  rightfully 
refuse  to  perform  its  duty  to  the  public.  They  may  make  and  estab- 
lish all  reasonable  and  proper  rules  and  regulations  for  the  government 
of  their  offices  and  those  who  deal  with  them,  but  they  have  no  power 
to  discriminate,  and  while  offering  ready  to  serve  some,  refuse  to  serve 
others.  The  law  requires  them  to  be  impartial,  and  to  serve  all  alike, 
upon  compliance  with  their  reasonable  rules  and  regulations.  This  the 
statute  expressh*  requires  in  respect  to  telegraph  lines,  and,  as  we  have 
seen,  the  same  provision  is  made  applicable  to  telephone  lines  and 
exchanges.  The  law  declares  that  it  shall  be  the  duty  of  any  person 
or  corporation  owning  and  operating  any  telegraph  line  within  this 
State  (which,  as  we  have  seen,  includes  a  telephone  exchange)  "to 
receive  dispatches  from  and  for  any  telegraph  lines,  associations,  or 
companies,  and  from  and  for  any  individual,"  and  to  transmit  the 
same  in  the  manner  established  by  the  rules  and  regulations  of  the 
office,  "  and  in  the  order  in  which  they  are  received,  with  impartiality 
and  good  faith."  And  such  being  the  plain  dutj-  of  those  owning  or 
operating  telegraph  lines,  or  telephone  lines  and  exchanges,  within  this 
State,  they  cannot  be  exonerated  from  the  performance  of  that  duty, 
b}*  any  conditions  or  restrictions  imposed  by  contract  with  the  owner 
of  the  invention  applied  in  the  exercise  of  the  employment.  The  duty 
prescribed  by  law  is  paramount  to  that  prescribed  by  contract. 

Nor  can  it  be  any  longer  controverted  that  the  Legislature  of  the 


264       STATE  EX   BEL.   V.   PORTLAND   NATURAL   GAS   AND   OIL   CO. 

State  has  full  power  to  regulate  and  control,  within  reasonable  limits 
at  least,  public  employments  and  property  used  in  connection  there- 
with. As  we  have  said,  the  telegraph  and  telephone  both  being  instru- 
ments in  constant  use  in  conducting  the  commerce,  and  the  affairs, 
both  public  and  private,  of  the  country,  their  operation,  therefore,  in 
doing  a  general  business,  is  a  public  employment,  and  the  instruments 
and  appliances  used  are  property-  devoted  to  public  use,  and  in  which 
the  public  have  an  interest.  And  such  being  the  case,  the  owner  of  the 
property  thus  devoted  to  public  use,  must  submit  to  have  that  use  and 
employment  regulated  b}'  public  authority  for  the  common  good.  This 
is  the  principle  settled  by  the  case  of  Munn  v.  Illinois,  94  U.  S.  113, 
and  which  has  been  followed  by  subsequent  cases.  In  the  recent  case 
of  Hockett  V.  State,  105  Ind.  250,  where  the  cases  upon  this  subject 
are  largely  collected,  it  was  held,  applying  the  principle  of  Munn  v. 
Illinois,  that  it  was  competent  to  the  State  to  limit  the  price  which  tele- 
phone companies  might  charge  for  their  patented  facilities  afforded  to 
their  customers.  And  if  the  price  of  the  service  can  be  lawfully  regu- 
lated by  State  authority,  there  is  no  perceptible  reason  for  denying 
such  authority  for  the  regulation  of  the  service  as  to  the  parties  to 
whom  facilities  should  be  furnished.^ 


STATE  EX  BEL.  SNYDER  v.  PORTLAND  NATURAL 
GAS   AND  OIL  CO. 

Supreme  Court  of  Indiana,  1899. 

[153  Ind.  483.2] 

Jordan,  C.  J.  This  is  a  proceeding  in  quo  warranto  by  the  State 
of  Indiana  on  the  elation  of  the  prosecuting  attorney  of  the  twenty- 
sixth  Judicial  Circuit  to  dissolve  and  seize  the  corporate  franchises  of 
appellee.  The  venue  of  the  cause  was  changed  from  the  Jay  Circuit 
Court  to  the  Randolph  Circuit  Court,  in  which  court  a  demurrer  was 
sustained  to  the  information  for  insufficiency  of  facts,  and  judgment 
was  rendered  in  favor  of  appellee  thereon.  The  State  appeals  and 
assigns  error  on  the  ruling  of  the  court  in  sustaining  the  demurrer 
to  the  information. 

The  information  alleges  that  the  defendant  is  a  corporation  dulj' 
organized  in  December,  1886,  under  the  laws  of  the  State  of  Indiana 
relating  to  the  incorporation  of  manufacturing  and  mining  companies. 
The  object  of  its  organization  is  to  conduct  the  business  of  mining  oil 
and  gas,  and  to  furnish  the  same  for  fuel  and  illuminating  purposes  and 

1  Compare:  Western  Union  v.  Chicago  R.  R.,  86  111.  246 ;  Western  Union  v.  Atlan- 
U,  &c.  R.  R.,  5  Oh.  St.  407 ;  Union  Trust  v.  Atcheaon,  &c.  Co.,  8  N.  M.  327.  — Ed. 
3  This  case  is  abridged.  —  Ed. 


STATE   EX   REL.   V.   PORTLAND   NATURAL   GAS   AND   OIL   CO.       265 

for  propelling  machinery,  &c.  Its  place  of  business  or  operation  is 
stated  to  be  at  the  city  of  Portland,  in  the  State  of  Indiana.  After 
Us  incorporation  it  obtained  from  said  city  permission  to  lay  gas  pipes 
along  and  under  the  public  streets  of  that  city  for  the  purpose  of  sup- 
plying its  inhabitants  with  gas  for  light  and  fuel,  and  it  engaged  in 
furnishing  gas  to  them  for  such  purposes.  That  the  Citizens  Natural 
Gas  and  Oil  Company  was  also  duly  incorporated  in  Februar}',  1889, 
under  the  same  laws  and  for  the  same  purposes  as  was  defendant,  and 
it  also  was  granted  the  privilege  by  the  city  of  Portland  to  lay  its  pipes 
in  and  along  the  streets  of  the  city  for  the  same  purposes  as  was  de- 
fendant, and  it  engaged  in  supplying  gas  to  the  inhabitants  of  said  city 
for  fuel  and  light. 

After  alleging  these  facts,  the  information  charges  that  the  defendant, 
on  the  1st  day  of  September,  1891,  "  in  violation  of  law  and  in  the 
abuse  of  its  corporate  powers  and  in  the  exercise  of  privileges  not  con- 
ferred upon  it  by  law  "  entered  into  a  certain  agreement  or  combination 
with  said  Citizens  Gas  and  Oil  Mining  Company  "to  fix  the  rate  of 
gas  to  be  charged  by  them  and  each  of  them  to  the  consumers  in  said 
city  of  Portland."  It  was  further  agreed  by  and  between  the  defend- 
ant and  said  other  mentioned  company'  that  "  neither  of  said  com- 
panies should  or  would  attach  the  service  pipes  of  any  gas  consumer  in 
said  city  to  its  pipe  lines  if,  at  the  time,  such  customer  or  consumer 
was  a  patron  of  the  other  company." 

It  is  further  averred  that  the  defendant  has  observed  and  complied 
with  said  agreement,  and  the  price  of  gas  has  been  fixed  therebj',  and 
it  has  at  all  times  refused  to  sell  or  furnish  gas  to  the  inhabitants  of 
said  city  at  any  other  price  than  the  one  fixed  b}-  said  agreement,  and, 
in  pursuance  of  said  agreement  and  in  order  to  prevent  competition,  it 
has  refused,  and  still  refuses,  to  supply  divers  inhabitants  of  the  said 
city  of  Portland  with  gas  who,  as  it  is  alleged,  were  consumers  of  gas 
from  the  pipe  line  of  the  said  Citizens  Gas  and  Oil  Mining  Company. 
It  is  further  alleged  that  there  is  no  other  corporation,  company,  or 
person  in  said  city  engaged  in  supplying  gas  for  light  and  fuel  to  its 
inhabitants. 

The  information  is  not  a  model  pleading,  and  ma}'  perhaps  be  said  to 
be  open  to  the  objection  that  in  some  respects  it  is  uncertain,  and  in 
others  states  conclusions  instead  of  facts.  The  question,  however, 
presented  for  our  decision  is:  Are  the  facts,  as  therein  alleged,  suffi- 
cient to  entitle  the  State  to  demand  that  the  appellee's  corporate  fran- 
chises shall  be  declared  forfeited  ? 

Appellee  is  in  its  nature  a  public  corporation,  which  fact  has  been 
recognized  by  our  legislature  in  conferring  upon  companies  engaged  in 
a  business  of  like  character  the  right  of  eminent  domain.  Acts  1889, 
p.  22,  §  5103,  Burns,  1894.  Being  the  creature  of  the  law,  the  franchises 
granted  to  it  by  the  State,  in  theory  at  least,  were  granted  as  a  public 
benefit,  and  in  accepting  its  rights,  under  the  laws  of  the  State,  it  im- 
pliedly agreed  to  carry  out  the  purpose  or  object  of  its  creation,  and 


266      STATE   EX   REL.   V.   PORTLAND   NATURAL   GAS    AND   OIL   CO. 

assumed  obligations  to  the  public ;  and  such  obligations  it  is  required 
to  discharge.  Beach  on  Monopolies  and  Industrial  Trusts,  §  221 ; 
Thomas  v.  Railroad  Co.,  101  U.  8.  71. 

It  certainl}'  can  be  said,  and  the  proposition  is  sustained  b}-  ample 
authority,  that,  in  furtherance  of  the  purposes  for  which  it  was  created, 
*it  owed  a  duty  to  the  public.  Its  duty  towards  the  citizens  of  the  city 
of  Portland  and  their  dut}-  towards  it  may  be  said  to  be  somewhat  re- 
ciprocal, and  an}'  dealings,  rules,  or  regulations  between  it  and  them, 
which  do  not  secure  the  just  rights  of  both  parties,  cannot  receive  the 
approbation  of  a  court.  The  law,  among  other  things,  exacted  of  ap- 
pellee the  duty  to  offer  and  supply'  gas  impartially  so  far  as  it  had  the 
ability  or  capacity  to  do  so,  to  all  persons  desiring  its  use  within  the 
territory  to  which  its  business  was  confined,  provided  always  such  per- 
sons made  the  necessary  arrangements  to  receive  it  and  complied  with 
the  company's  reasonable  regulations  and  conditions.  Portland  Natural 
Gas,  &c.  Co.  V.  State,  135  Ind.  54,  and  authorities  there  cited ;  People 
V.  Chicago  Gas  Trust  Co.,  130  III.  268 ;  Chicago,  &c.  Co.  v.  People's, 
&c.  Co.,  121  III.  530;  Westfield  Gas,  &c.  Co.  v.  Mendenhall,  142  Ind. 
538  ;  Central  Union  Tel.  Co.  v.  Bradbury,  106  Ind.  1  ;  Central  Union 
Tel.  Co.  u.  Falley,  118  Ind.  194 ;  Central  Union  Tel.  Co.  v.  Swoveland, 
14  Ind.  App.  341 ;  8  Am.  and  Eng.  Ency.  of  Law,  614. 

It  is  an  old  and  familiar  maxim  that  "  Competition  is  the  life  of 
trade,"  and  whatever  act  destroys  competition,  or  even  relaxes  it,  upon 
those  who  sustain  relations  to  the  public,  is  regarded  by  the  law  as  in- 
jurious to  public  interests  and  is  therefore  deemed  to  be  unlawful,  on 
tlie  grounds  of  public  policT.  Greenhood  on  Public  Policy,  pp.  654, 
655  ;  Chicago,  &c.  Co.  v.  People's,  &c.  Co.,  supra;  Gibbs  v.  Consoli- 
dated, &c.  Co.,  130  U.  S.  396;  Hooker  v.  Vandewater,  4  Denio,  349; 
Consumers  Oil  Co.  v.  Nunnemaker,  142  Ind.  560 ;  Beach  on  Pr.  Corp. 
§§  54,  55. 

The  authorities  affirm,  as  a  general  rule,  that,  if  the  act  complained 
of,  by  its  results,  will  restrict  or  stifle  competition,  the  law  will  regard 
such  act  as  incompatible  with  public  policy,  without  any  proof  of  evil 
intent  on  the  part  of  the  actor  or  actual  injur}'  to  the  public.  The  in- 
quiry is  not  as  to  the  degree  of  injury  inflicted  upon  the  public ;  it  is 
sufficient  to  know  that  the  inevitable  tendency  of  the  act  is  injurious  to 
the  public.  Central  Ohio,  &c.  Co.  v.  Guthrie,  35  Ohio  St.  666  ;  Swan 
r.  Chorpenning,  20  Cal.  182  ;  State  v.  Standard  Oil  Co.,  49  Ohio  St. 
137;  Gibbs  v.  Smith,  115  Mass,  592;  Richardson  v.  Buhl,  77  Mich. 
632  ;  Pacific  Factor  Co.  v.  Adler,  90  Cal.  110;  Beach  on  Monopolies 
and  Industrial  Trusts,  §  82. 

Recognizing  and  adopting  the  principles  to  which  we  have  referred 
as  sound  law,  we  next  proceed  to  appl}'  them  as  a  test  to  the  facts  in- 
volved in  this  case.  It  will  not  be  unreasonable  to  presume  that  one  of 
the  objects  upon  the  part  of  the  cit}-  of  Portland  in  granting  permission 
to  the  Citizens  Gas  Company  to  lay  its  pipes  and  mains  along  and  under 
the  streets  of  that  city,  after  it  had  awarded  the  same  rights  to  appellee. 


CHICAGO,  M.  <k  ST.  P.  R,  R.  V.  WABASH,  ST.  L.  &  P.  R.  R.  267 

was  that  there  might  be  a  reasonable  and  fair  competition  between 
these  two  companies.  B}'  the  agreement  in  question,  when  carried  into 
effect,  the  patrons  of  one  company  were  excluded  from  being  supplied 
with  gas  from  the  other  compan}-.  Each  company'  was,  b}-  the  terms 
of  the  agreement,  bound  to  abide  by  and  maintain  the  prices  fixed,  and 
each  was  prohibited  from  furnishing  gas  to  the  customers  of  the  other. 

That  the  people  of  that  cit}'  who  desired  to  become  consumers  of  gas 
were,  by  the  agreement  in  question,  deprived  of  the  benefits  that  might 
result  to  them  from  competition  between  the  two  companies  certainly 
cannot  be  successfully  denied.  The  exclusion  of  competition,  under 
the  agreement,  redounded  solelj'  to  the  benefit  of  appellee  and  the 
other  company,  and  the  enforcement  of  the  compact  between  them 
could  be  nothing  less  than  detrimental  to  the  public.  By  uniting  in  this 
agreement  appellee  disabled,  or  at  least  professed  to  have  disabled, 
itself  from  the  performance  of  its  implied  duties  to  furnish  gas  impar- 
tially to  all,  and  thereby  made  public  accommodations  subservient  to 
its  own  private  interests. 

From  what  we  have  said  it  follows  that  the  court  erred  in  sustaining 
appellee's  demurrer  to  the  information,  and  the  judgment  is  therefore 
reversed  and  the  cause  remanded  with  instructions  to  the  trial  court 
for  further  proceedings  consistent  with  this  opinion.^ 


CHICAGO,  M.  &  ST.  P.  R.  R.  v.  WABASH,  ST.  L.  &  P.  R.  R. 
Circuit  Court  of  United  States,  1894, 

[61  Fed.  993.2] 

Caldwell,  J.  The  design  of  the  contract  on  which  the  appellant 
rests  its  claim  is  not  left  to  presumption  or  conjecture.  Its  purpose  is 
apparent  on  the  face  of  the  instrument.  Its  object  was  not  to  avoid 
ruinous  competition  by  entering  into  an  agreement  to  carry  freight  at 
reasonable  rates,  but  its  evident  purpose  was  to  stifle  all  competition 
for  the  purpose  of  raising  rates.  By  the  means  of  the  contract,  all 
of  the  roads  are  to  be  operated,  as  to  through  traffic,  "  as  they  should 
be  if  operated  bj'  one  corporation  which  owned  all  of  them."  These 
seven  corporations  were  made  one  company  so  far  as  concerned  their 
relations  with  each  other,  with  rival  carriers,  and  with  the  public.  Be- 
tween them  there  could  be  no  competition  or  freedom  of  action.  To 
the  extent  of  the  traffic  covered  by  this  contract,  —  and  it  covered  no 
inconsiderable  portion  of  the  traffic  of  the  continent,  —  each  company 
practically  abdicated  its  functions  as  a  common  carrier,  and  conferred 

1  Compare:  Gibbs  v.  Gas  Co.,  130  U.  S.  396;  Trust  Co.  v.  Columbus,  &c.  R.  R., 
95  Fed.  22 ;  Light  Co.  v.  Sims,  104  Cal.  331 ;  People  v.  Gas  Trust,  130  111.  293 ;  Light 
Co.  V.  Claffy,  151  N.  Y.  42.  —  Ed. 

^  Only  opinion  is  printed.  —  Ed. 


268  CHICAGO,  M.  4  ST.  P.  R.  R.  V.  WABASH,  ST.  L.  &  P.  R.  R. 

them  on  a  new  creation,  for  the  sole  purpose  of  suppressing  competi- 
tion. Before  they  entered  into  this  contract,  each  of  these  companies 
had  the  power,  and  it  was  its  duty,  to  make  rates  for  itself,  and  to 
make  them  reasonable;  but,  by  the  terms  of  this  contract,  every  one 
of  the  companies  was  divested  of  all  its  powers  and  discretion  in  this 
respect.  The  contract  removed  every  incentive  to  the  companies  to 
afford  the  public  proper  facilities,  and  to  carry  at  reasonable  rates ; 
for,  under  its  provisions,  a  company  is  entitled  to  its  full  percentage  of 
gross  earnings,  even  though  it  does  not  carry  a  pound  of  freight.  The 
necessar}'  and  inevitable  result  of  such  a  contract  is  to  foster  and  create 
poorer  service  and  higher  rates.  There  is  no  inducement  for  a  road 
to  furnish  good  service,  and  coxry  at  reasonable  rates,  when  it  receives 
as  much  or  more  for  poor  service,  or  for  no  service,  as  it  would  re- 
ceive for  good  service  and  an  energetic  struggle  for  business. 

A  railroad  company  is  a  quasi  public  corporation,  and  owes  certain 
duties  to  the  public,  among  which  are  the  duties  to  afford  reasonable 
facilities  for  the  transportation  of  persons  and  property,  and  to  charge 
only  reasonable  rates  for  such  service.  Any  contract  b^'  which  it  dis- 
ables itself  from  performing  these  duties,  or  which  makes  it  to  its  inter- 
est not  to  perform  them,  or  removes  all  incentive  to  their  performance, 
is  contrar}'  to  public  policy  and  void ;  and,  the  obvious  purpose  of  this 
contract  being  to  suppress  or  limit  competition  between  tlie  contracting 
companies  in  respect  to  the  traffic  covered  by  the  contract,  and  to 
establish  rates  without  regard  to  the  question  of  their  reaso^iableness, 
it  is  contrar}*  to  public  policy",  and  void.  Railroad  Co.  v.  Closser,  126 
Ind.  348,  26  N.  E.  159  ;  Gulf,  C.  &  S.  F.  R.  Co.  v.  State  (Tex.  Sup.), 
10  S.  W.  81;  State  v.  Standard  Oil  Co.  (Ohio  Sup.),  30  N.  E.  279; 
Texas  &  P.  Ry.  Co.  v.  Southern  Pac.  Ry.  Co.  (La.),  6  South.  888 ; 
Gibbs  V.  Gas  Co.,  130  TJ.  S.  396,  9  Sup.  Ct.  553  ;  Morris  Run  Coal  Co. 
V.  Barclay  Coal  Co.,  68  Pa.  St.  173  ;  Salt  Co.  v.  Guthrie,  35  Ohio  St. 
666 ;  Stanton  v.  Allen,  5  Denio,  434  ;  Hooker  v.  Vandewater,  4  Denio, 
349 ;  Chicago  Gaslight  &  Coke  Co.  v.  People's  Gaslight  «&  Coke  Co., 
121  111.  530,  13  N.  E.  169  ;  West  Virginia  Transp.  Co.  v.  Ohio  River 
Pipe  Line  Co.,  22  W.  Va.  600  ;  W.  U.Tel.  Co.  u.  American  Union  Tel. 
Co.,  65  Ga.  160;  Sayre  v.  Association,  1  Duv.  143;  U.  S.  v.  Trans- 
Missouri  Freight  Ass'n,  7  C.  C.  A.  15,  58  Fed.  58. 

But,  conceding  that  the  contract  is  illegal  and  void,  the  appellant 
asserts  that  it  has  been  performed,  and  that  the  appellee  is  bound  to 
account  for  moneys  received  under  the  contract  according  to  its  terms. 
This  contention  rests  on  a  misconception  of  the  character  of  this  suit. 
The  appellant's  claim  is  grounded  on  the  illegal  and  void  contract,  and 
and  this  suit  is,  in  legal  effect,  nothing  more  than  a  bill  to  enforce  spe- 
cific performance  of  that  contract. 

The  contract  contemplated  two  modes  of  pooling,  —  one  by  an  actual 
division  of  the  trafllc,  and  the  other  bj-  a  division  of  the  gross  earn- 
ings. The  traffic  not  having  been  divided,  this  is  a  suit  to  enforce  the 
second  method  of  the  pool,  —  a  division  of  the  gross  earnings  ;  or,  in 


CHICAGO,  M.  &  ST.  P.  R.  R.  V.  WABASH,  ST.  L.  &  P.  R.  R.  269 

other  words,  a  pooling  of  the  earnings.  The  illegal  and  void  contract 
has  not  been  executed,  and  the  appellant  invokes  the  aid  of  the  court 
to  compel  the  Wabash  Company  to  execute  it  on  its  part  by  pooling  its 
earnings.  It  may  be  conceded  that  the  illegal  contract  has  been  per- 
formed on  the  part  of  the  appellant,  though  it  does  not  appear  to  have 
done  anything  more  than  to  sign  the  contract.  The  only  thing  it  could 
do  towards  a  performance  of  the  contract  was  not  to  compete  for  the 
business.  This  was  a  violation  of  its  duty  to  the  public,  and  illegal. 
But  a  contract  performed  on  one  side  only  is  not  an  executed  contract. 
"Where  an  illegal  act  is  to  be  done  and  paid  for,  the  contract  is  not  ex- 
ecuted until  the  act  is  done  and  paid  for.  A  court  will  not  compel  the 
act  to  be  done,  even  though  it  has  been  paid  for.  Neither  will  it  com- 
pel payment,  although  the  act  has  been  done ;  for  this  would  be  to  en- 
force the  illegal  contract.  The  illegality  taints  the  entire  contract,  and 
neither  of  the  parties  to  it  can  successfully  make  it  the  foundation  of 
an  action  in  a  court  of  justice.  The  Wabash  Company  performed  the 
service  that  earned  the  money  the  appellant  is  seeking  to  recover.  The 
appellant  earned  no  part  of  it.  There  is  nothing  in  the  record  to  show 
that  the  appellant  would  have  carried  more  or  the  Wabash  Company 
less  freight  if  the  contract  had  never  been  entered  into.  The  money 
demanded  was  received  by  the  Wabash  Company  for  freight  tendered 
to  it  by  shippers  themselves,  and  carried  by  it  over  its  own  line.  It 
was  legally  bound  to  accept  the  freight  thus  tendered,  and  was  entitled 
to  receive  the  compensation  for  the  carriage,  and  cannot  be  compelled 
to  pa}'  the  money  thus  earned,  or  any  part  of  it,  to  the  appellant  on 
this  illegal  and  void  contract. 

The  case  of  Brooks  v.  Martin,  2  Wall.  70,  is  not  in  point.  In  that 
case  the  defendant  set  up  an  illegal  contract,  which  had  been  fully  per- 
formed and  executed,  as  a  defence  against  a  demand  that  existed  inde- 
pendently of  the  contract ;  whereas,  in  this  case,  the  illegal  contract  is 
set  up  by  the  plaintiff  as  the  foundation  of  its  action.  Strike  this  con- 
tract out,  and  confessedly  the  complaint  states  no  cause  of  action ; 
leave  it  in,  and  it  states  an  illegal  and  void  cause  of  action. 

Courts  will  not  lend  their  aid  to  enforce  the  performance  of  a  con- 
tract which  is  contrary  to  public  policy  or  the  law  of  the  land,  but  will 
leave  the  parties  in  the  plight  their  own  illegal  action  has  placed  them. 
Central  Transp.  Co.  v.  Pullman's  Palace  Car  Co.,  139  U.  S.  24,  11  Sup. 
Ct.  478 ;  Gibbs  v.  Gas  Co.,  130  U.  S.  396,  9  Sup.  Ct.  553  ;  Texas  & 
P.  Ry.  Co.  V.  Southern  Pac.  Ry.  Co.,  41  La.  Ann.  970,  6  South.  888 ; 
Morris  Run  Coal  Co.  v.  Barclay  Coal  Co.,  68  Pa.  St.  17B  ;  Hooker  v. 
Vandewater,  4  Denio,  349.  We  have  not  overlooked  the  case  of  Cen- 
tral Trust  Co.  V.  Ohio  Cent.  R.  Co.,  23  Fed.  306.  The  opinion  in  that 
case  is  not  supported  by  the  authorities,  and  is  unsound  in  principle. 

The  decree  of  the  court  below  is  affirmed.^ 

1  Compare  :  U.  S.  v.  Freight  Ass.,  166  U.  S.  290 ;  U.  S.  v.  Joint  Traffic  Assn.,  171 
U.  S.  505  ;  Anderson  v.  Jett,  89  Ky.  375 ;  R.  R.  v.  R.  R.,  41  La.  Ann.  940  ;  R.  R.  v. 
R.  R.,  66  N.  H.  100 ;  Leslie  v.  Lorillard,  110  N.  Y.  519  ;  Cleveland  R.  R.  v.  Clesser, 
126  Ind.  362.  — £d. 


270  UNITED   STATES   V.   AMERICAN   WATER  WORKS   CO. 


UNITED   STATES   v.   AMERICAN  WATER  WORKS 
COMPANY. 

CraCDIT    COUKT   OF   NEBRASKA,    1889. 
[37  Fed.  747.  l] 

The  United  States  as  owner  of  Fort  Omaha  reservation,  a  tract  of 
man}'  acres  on  which  were  dwellings,  hospitals,  barracks  and  stables, 
brought  this  bill  to  get  all  the  water  used  by  the  reservation  metered 
through  a  single  meter  to  be  paid  for  at  the  relatively  lower  rates  for 
large  consumption  fixed  in  the  section  of  the  water  ordinance. 

Brewer,  J.  Obviously  the  whole  scope  of  this  section  is  to  give  to 
the  water  company  a  right  to  treat  each  building  separately.  That,  by 
the  agreed  statement  of  facts,  has  been  their  constant  practice,  and  any 
other  construction  would  work  injustice  to  it.  The  very  fact  that  all 
the  special  rates  prescribed  make  no  reference  to  ownership  of  build- 
ings or  property,  shows  that  the  question  of  ownership  is  immaterial, 
and  that  the  rates  depend  upon  the  character  of  the  property,  and  the 
probable  extent  of  the  use.  Take  the  first  two  items :  it  is  not  to  the 
owner  of  the  dwelling-house  not  exceeding  five  rooms,  but  for  the 
house  itself,  and  for  each  additional  room.  The  same  principle  should 
apply  to  a  large  property  like  the  reservation,  upon  which  are  many 
buildings.  The  question  is  not  who  owns  all  this,  but  what  is  the 
character  of  the  buildings,  the  number  of  them,  and  the  uses  to  which 
they  are  put.  And  the  meter  rates  are  to  be  construed  as  merely  a 
substitute  for  the  special  rates,  giving  the  right  to  pay  for  the  amount 
of  water,  rather  than  upon  the  character  and  size  of  the  building. 
Suppose  some  one  in  the  city  owning  a  block  of  ground  should  put  up 
20  or  30  residences  to  rent ;  it  would  be  a  clear  violation  of  the  spirit 
of  this  ordinance  to  permit  him  to  supplj*  all  these  houses  as  though 
they  constituted  one  propert}.  Indeed,  as  nothing  is  said  about  con- 
tiguit}',  if  ownership  was  the  test,  a  man  having  buildings,  residences, 
stores,  and  factories  scattered  indifferent  parts  of  the  city  might  insist 
upon  a  supply  to  all  at  the  lowest  rate ;  or,  as  neither  ownership  nor 
contiguity  is  spoken  of,  why  might  he  not  contract  for  all  the  water 
from  defendant,  and  subcontract  it  to  various  consumers  in  the  city? 
I  think  there  can  be  little  doubt  on  this.  The  practice  which  has 
obtained  ever  since  defendant's  water-works  were  established  cor- 
rectly interprets  the  ordinance,  and  expresses  its  true  spirit  and  mean- 
ing ;  and  that  gives  defendant  the  right  to  treat  each  building  as  a 
separate  consumer,  and  charge  either  for  the  building  or  at  meter 
rates  accordingly.  This  being  the  true  interpretation  of  the  contract, 
it  follows  that  complainant's  case  must  fail,  and  a  decree  must  go  dis- 
missing the  bill. 

1  The  Btatement  and  the  opinion  are  abridged  and  condensed.  —  Ed. 


MICHIGAN   CENTRAL   R.    CO.   V.    PERE   MARQUETTE   R.   CO.        271 


MICHIGAN  CENTRAL  RAILROAD  COMPANY  v.  PERE 
MARQUETTE  RAILROAD  COMPANY. 

SuPKEME  Court  of  Michigan,  1901. 

[128  Mich.  333.1] 

Bill  by  the  Michigan  Central  Railroad  Company  to  enjoin  the  Pere 
Marquette  Railroad  Company  from  violating  the  traflSc  provisions  of  a 
contract  for  the  joint  use  of  premises.  From  a  decree  dismissing  the 
bill,  complainant  appeals.     Reversed. 

3.  It  is  next  urged  that,  under  the  complainant's  construction  of  the 
contract,  it  is  void  as  against  public  policy,  in  that  it  illegally  restricts 
the  Saginaw  Valley  &  St.  Louis  Railroad  Company  from  receiving  and 
shipping  freight.  It  would  seem  a  sufficient  reply  to  this  to  say  that 
there  is  no  restriction  by  the  contract  to  carry  freight  over  its  own  road. 
Its  entrance  into  Saginaw  from  the  junction  with  the  Jackson,  Lansing 
&  Saginaw  Railroad  was  one  purely  of  contract.  Its  own  road  was  in 
fact  constructed  only  to  the  junction.  It  then  had  two  ways  open  to  it, 
—  either  to  construct  its  own  independent  road  into  Saginaw,  or  make 
a  contract  with  the  Jackson,  Lansing  &  Saginaw  Railroad  Company. 
It  chose  the  latter.  The  contract  which  it  made  must  either  stand  or 
fall  as  a  whole.  Alford  v.  Railway  Co.,  3  Interst.  Com.  R.  519.  If  the 
objectionable  provisions  are  absolutely  void,  then  the  contract  must 
utterly  fail.  Without  these  provisions  the  Jackson,  Lansing  &  Saginaw 
Railroad  Company  would  undoubtedly  never  have  made  the  contract. 
This  court  cannot  make  one  for  it.  If  the  contract  is  entirely  void  for 
this  reason,  complainant,  as  stated  by  its  counsel,  has  no  objection  to 
such  a  decree ;  for  this  would  leave  the  defendant  without  any  right 
whatever  over  the  complainant's  road. 

It  is  conceded  that  a  railroad  company  cannot  enter  into  a  contract 
to  incapacitate  itself  from  discharging  the  duties  resting  upon  it.  This, 
however,  is  far  from  holding  that  railroad  companies  may  not  enter  into 
such  an  arrangement  as  was  made  in  this  case.  There  is  not  a  word  in 
the  contract  which  limits  the  duty  of  either  of  the  three  roads  to  receive 
freight  for  transportation,  or  which  restricts  the  right  of  any  shipper  to 
have  his  freight  carried  by  either  road.  The  Saginaw  Valley  &  St. 
Louis  Railroad  Company  expressly  retained  the  right  to  ship  eastward 
if  it  should  construct  its  road  in  that  direction.  It  had  no  connection 
east  of  Saginaw,  and  none  was  provided  by  its  charter.  The  restriction 
in  regard  to  picking  up  freight  for  the  East  was  aimed  solely  at  the 
Flint  &  Pere  Marquette  road,  which  was  then  in  existence,  and  had  a 
line  running  eastward  from  East  Saginaw.  It  was  the  only  competing 
line  then  in  existence.     The  contract  was  aimed  at  it  and  nothing  else. 

1  Only  the  principal  point  is  printed. — Ed. 


272       BILLINGS  MUTUAL  T.   CO.   V.  ROCKT   MOUNTAIN  B.   T.  CO. 

No  public  policy  and  no  statute  were  attacked  by  this  provision.  The 
Flint  &  Pere  Marquette  had  its  own  road  and  station  grounds  in  Sagi- 
naw. Any  citizen  of  Saginaw  could  ship  freight  from  or  receive  freight 
at  its  depot.  The  same  facilities  were  offered  by  the  Jackson,  Lansing 
&  Saginaw  Railroad  Company,  The  public  had  two  competing  lines, 
and  could  at  its  choice  deal  with  either.  That  right  was  not  interfered 
with  by  this  contract.  The  Saginaw  Vallej*  &  St.  Louis  Railroad  Com- 
pany, by  the  contract  was  permitted  to  run  its  cars  to  the  junction  of 
the  Flint  &  Pere  Marquette  Railway  at  the  Y  north  of  the  city.  This 
was  for  the  accommodation  of  the  former  compan}'.  It  is  now  claimed 
that  the  present  defendant,  which  has  bought  the  Flint  &  Pere  Mar- 
quette and  other  roads,  obtained  the  very  right  which  the  Saginaw  Val- 
ley' &  St.  Louis  Railroad  Company  contracted  not  to  exercise,  and 
which  it  did  not  exercise  for  a  period  of  22  jears.  We  think  this  claim 
cannot  be  maintained.  The  Jackson,  Lansing  &  Saginaw  Railroad 
Company  had  the  right  to  stipulate  that  the  other  road  should  not  use 
its  depots  and  grounds  to  pick  up  and  deliver  freight  to  its  onh*  com- 
petitor, the  Flint  &  Pere  Marquette  Railway  Compan}',  and  in  doing  so 
violated  no  rule  of  public  policy  or  statute  of  this  state.  Contracts  be- 
tween railroads,  more  restrictive  than  this  one,  have  been  sustained. 
Union  Pac.  R.  Co.  v.  Chicago,  etc.,  R.  Co.,  163  U.  S.  564  (16  Sup.  Ct 
1173) ;  Chicago,  etc.,  R.  Co.  v.  Denver,  etc.,  R.  Co.,  143  U.  S.  596  (12 
Sup.  Ct.  479).  As  was  said  in  Leslie  v.  Lorillard,  110  N.  Y.  519  (18 
N.  E.  363,  1  L.  R.  A.  456)  :  "  The  apprehension  of  danger  to  the  pub- 
lic interests  should  rest  on  evident  grounds,  and  courts  should  refrain 
from  the  exercise  of  their  equitable  powers  in  interfering  with  and  re- 
straining the  conduct  of  the  affairs  of  individuals  or  of  corporations, 
unless  their  conduct,  in  some  tangible  form,  threatens  the  welfare  of  the 
public." 

BILLINGS  MUTUAL  TELEPHONE   COMPANY  v.  ROCKY 
MOUNTAIN  BELL  TELEPHONE  COMPANY. 

CiRCDiT  Court  of  the  United  States,  1907. 

[155  Fed.  207.1] 

The  right  to  be  acquired  must  be  regarded  in  its  relation  to  the 
character  of  the  thing  used,  and,  while  rights  of  property  should  alwaj-s 
be  scrupulously  protected,  by  strict  construction  of  laws  conferring 
power  of  appropriation  of  the  property  of  a  person  for  public  use,  no 
construction  of  a  substantial  privilege  should  be  adopted  which,  in  its 
practical  effect,  would  deny  the  benefit  expressly  and  clearly  intended. 
I  think  that  the  use  that  may  be  acquired  by  the  plaintiff  compmy  is 
such  as  is  practicable  by  a  connection  like  that  had  in  the  every  day 
service  with  defendant's  own  connections.  This  is  feasible  by  a  plan  of 
trunking  between  the  exchanges,  where  the  respective  switch  or  toll 

^  Tbe  earlier  part  of  the  opinion  dealing  with  the  statates  is  omitted.  —  Ed. 


BILLINGS   MUTUAL   T.   CO.   V.   EOCKY   MOUNTAIN  B.   T.   CO.      273 

boards  are  maintained.  The  defendant  company  would  then  receive 
the  business  from  the  plaintiff  as  it  now  receives  business  coming  from 
one  of  its  own  subscribers.  Electricians  of  experience  say  that  it  is 
neither  against  scientific  rules,  nor  uncommon,  in  practical  telephony, 
to  find  one  telephone  plant  connected  with  toll  lines  of  other  systems ; 
that  the  matter  of  current  is  practically  the  same  in  talking  on  all  sys- 
tems ;  and  that,  if  the  established  circuits  cannot  do  the  business,  the 
method  of  taking  care  of  increased  business  or  an  overload  is  b^-  string- 
ing more  circuits.  The  operators  of  defendant  coinpan}-  would  have 
to  be  made  use  of  to  make  such  service  practical;  the  additional  service 
that  the  defendant's  operators  would  have  to  perform  being  that  of 
"  plugging  in,"  answering,  and  getting  the  connection.  But,  in  effect, 
the  same  process  is  required  to  be  used  for  a  patron  of  the  defendant 
company's  exchange,  so  that  the  question  is  really  resolved  into  one  of 
detail,  and  is  not  one  of  practicability.  It  ma}'  even  be  that,  owing  to 
possible  differences  in  the  switchboards  of  the  two  companies,  an  auxil- 
iary apparatus  will  be  necessary' ;  but  that  is  also  a  matter  of  mechani- 
cal adjustment,  not  unusual  or  at  all  difficult  of  arrangement. 

The  right  to  use  is  the  thing  the  law  has  said  may  be  acquired. 
Therefore,  where  appropriate  proceedings  are  instituted,  as  in  this 
case,  it  is  this  right  of  use  that  is  to  be  acquired  ;  and  the  reasonable, 
practical  method  by  which  the  right  may  be  enjoyed  is  use  by  a  con- 
nection made  so  that  the  one  compan}-,  by  its  operators,  may  call  the 
operators  of  the  other  company,  which  must  receive  the  long-distance 
business  of  the  subscribers  of  the  plaintiff  company  and  care  for  the 
same  very  much  as  it  would  like  business  of  its  own  patrons.  In  other 
words,  where  two  companies  owning  different  lines  of  telephones  in 
Montana  cannot  agree  upon  the  compensation  for  the  privilege  of  con- 
nection and  use,  the  law  of  Montana  obliges  the  one  to  submit  to  con- 
nection with  the  other,  and  (upon  paj'ment  of  damages  to  be  assessed), 
to  accept  a  patronage,  and  to  submit  to  a  necessary  use  that  it  might  not 
wish  to  accept  or  allow,  and  probably  could  not  be  compelled  to  accept 
or  allow,  were  it  not  for  the  provisions  of  the  Constitution  and  laws  of 
the  state. 

It  would  be  too  narrow  a  view  of  the  constitutional  provision  and 
the  law  to  say  that  right  of  connection  and  use  is  satisfied  by  mere 
ph3'sical  union  of  the  telephone  wires  and  mere  adjustment  of  the  same. 
Right  of  connection  and  use  means  the  privilege  of  having  the  business 
proffered  accepted  and  efficiently  cared  for  by  the  receiving  company, 
through  its  agents  or  operators,  substantially  as  would  be  the  business 
pi'offered  by  one  of  its  own  subscribers. 

No  questions  of  complicated  traffic  arrangements  enter  into  the  con- 
sideration of  the  matter  as  it  now  stands  before  the  court.  Difficulties 
of  such  a  nature  vasiy  arise  hereafter,  but  they  can  be  surmounted  when 
the  principle  is  recognized  that  the  spirit  of  the  Constitution  and  the 
letter  of  the  laws  of  the  state,  in  which  defendant  operates  its  lines, 

18 


274  JOHNSON   V.   DOMINION   EXPRESS   COMPANY. 

compel  it,  under  its  primal  duty  to  the  public,  to  yield  to  the  right  of 
plaintiff  company  to  connect  its  line  with  defendant's,  and  to  enjoy  the 
use  thereof  in  a  reasonable  and  effective  wa}-,  provided,  of  course,  dam- 
ages are  paid,  as  required  by  law.  Atlantic  Coast  Line  R.  Co.  v.  N. 
C.  Corporation  Commission  (June  1,  1907),  27  Sup.  Ct.  585,  51  L.  Ed. 
933 ;  Carapbellsville  Tel.  Co.  v.  Lebanon  L.  &  L.  Tel.  Co.,  80  S.  W. 
1114,  84  S.  W.  518,  118  Ky.  279. 

From  these  views  it  follows  that  plaintiff  is  within  its  rights  when  it 
invokes  the  power  of  eminent  domain  for  proposed  long-distance  tele- 
phone connections,  which  constitute  a  clearly  defined  public  use.  The 
use  sought  is  convenient  and  of  great  benefit  to  the  public.  There  will 
be  no  taking  in  the  sense  of  exclusion  of  defendant  company  from  en- 
joyment or  control  of  it's  property ;  but  rather  a  limited  use  such  as  a 
company  operating  a  telephone  S3stem  offers  to  and  necessarih-  sur- 
renders to  a  patron  when  its  lines  are  being  used  for  conversation. 

Defendant,  having  erected  its  system  subject  to  reasonable  imposi- 
tions that  might  be  put  upon  it  b}'  the  Constitution  and  laws  of  the 
state,  is  under  a  duty  to  allow  such  a  connection  and  use  as  is  outlined 
above. 

The  motion  is  granted. 


JOHNSON  V.  DOMINION  EXPRESS  COMPANY. 
High  Court  of  Justice,  Ontario,  1896. 

[208   Ontario,  203.»] 

This  was  an  action  brought  by  William  Johnson  and  others  trading 
under  the  name  of  the  National  Package  Dispatch  Company,  to  compel 
the  defendants  to  carry  goods  tendered  to  them  for  transportation, 
under  the  circumstances  set  out  in  the  judgment.  [It  appeared  that 
plaintiffs  were  engaged  in  gathering  together  small  packages  from  ship- 
pers charging  lower  rates  than  the  plaintiffs  for  small  packages,  and 
packing  them  into  100  lb.  packages  for  which  they  demanded  the  1001b. 
rate  for  large  packages.] 

Rose,  J.  It  seems  to  me  that  the  question  comes  simply  down  to 
this,  did  the  defendant  company  hold  itself  out  as  a  carrier  to  carr}' 
goods  for  persons  in  the  position  of  the  plaintiffs,  and  for  the  purposes 
for  which  the  plaintiffs  desired  them  to  be  carried ;  and,  secondly,  if  it 
did :  does  the  tariff  rate  or  rates  charged  to  others,  on  the  evidence  be- 
fore me,  establish  that  the  amount  tendered  by  the  plaintiffs,  was  a 
reasonable  amount,  or  that  the  defendant  company  might  not  well 
chaise  for  each  parcel  in  a  packed  parcel  according  to  its  ordinary 

1  Only  the  conclasion  of  the  judge  is  printed.  —  Ed. 


CENTRAL   ELEVATOR   CO.   ET  AL.   V.   PEOPLE.  275 

rates?  I  find  as  a  fact  that  the  rates  tendered  by  the  plaintiffs,  or 
which  they  were  willing  to  pay,  were  not  reasonable  under  the  circum- 
stances. I  do  not  find  it  necessary  to  determine  whether  or  not  the 
defendant  has  the  right  absolutely  to  decline  to  carry  parcels  so  packed 
for  the  plaintiffs,  but  I  say  I  do  not  think  the  defendant  even  intended 
to  hold  itself  out  to  the  public  as  the  carrier  of  the  goods  of  a  rival  ex- 
press company-,  making  use  of  its  capital  and  its  facilities  for  doing 
business  to  the  aggrandizement  of  its  rival  and  its  own  destruction. 
An  argument  which  would  lead  to  the  conclusion  that  Mr.  McCarthy 
candidly,  but  boldly,  avowed  on  behalf  of  his  clients,  seems  to  me  so 
unjust  as  to  show  that  it  is  not  logically  sound.  In  my  opinion  the 
action  should  be  dismissed. 


CENTRAL  ELEVATOR  COMPANY  et  al.   v.   PEOPLE. 
Supreme  Court  of  Illinois,  1898. 

[174  ///.  203.1]  (^ 

Informations  filed  by  the  Attorney  General  praying  an  injunction 
to  restrain  the  defendants,  as  warehousemen,  from  storing  grain  in  their 
own  warehouses  in  contravention  of  their  public  dut}-. 

Mr.  Justice  Cartwright.  It  is  a  firmly  established  rule  that  where 
one  person  occupies  a  relation  in  which  he  owes  a  dut}'  to  another  he 
shall  not  place  himself  in  any  position  which  will  expose  him  to  the 
temptation  of  acting  contrary  to  that  duty  or  bring  his  interest  in  con- 
flict with  his  duty.  This  rule  applies  to  every  person  who  stands  in 
such  a  situation  that  he  owes  a  duty  to  another,  and  courts  of  equity 
have  never  fettered  themselves  b}'  defining  particular  relations  to  which, 
alone,  it  will  be  applied.  They  have  applied  it  to  agents,  partners, 
guardians,  executors,  administrators,  directors  and  managing  oflScers 
of  corporations,  as  well  as  to  trustees,  but  have  never  fixed  or  defined 
its  limits.  The  rule  is  founded  upon  the  plain  consideration  that  the 
one  charged  with  duty  shall  act  with  regard  to  the  discharge  of  that 
duty,  and  he  will  not  be  permitted  to  expose  himself  to  temptation  or 
be  brought  into  a  situation  where  his  personal  interests  conflict  with 
his  dut\-.  Courts  of  equity  have  never  allowed  a  person  occupying 
such  a  relation  to  undertake  the  service  of  two  whose  interests  are  in 
conflict,  and  then  endeavor  to  see  that  he  does  not  violate  his  duty, 
but  forbid  such  a  course  of  dealing  irrespective  of  his  good  faith  or 
bad  faith.  If  the  duty  of  the  defendants,  as  public  warehousemen, 
stands  in  opposition  to  personal  interest  as  buyers  and  dealers  in  grain 
storing  the  same  in  their  own  warehouses,  then  the  law  interposes* 
a  preventive  clieck  against  an}'  temptation  to  act  from  personal  interest 
by  prohibiting  them  from  occupying  au}-  such  position. 

1  Only  the  general  argument  of  the  court  is  here  reprinted.  —  Ed. 


276  CENTRAL   ELEVATOR   CO.   ET   AL,   V.   PEOPLE. 

The  public  warehouses  established  under  the  law  are  public  agencies, 
and  the  defendants,  as  licensees,  pursue  a  public  employment.  They 
are  clothed  with  a  duty  toward  the  public.  The  evidence  shows  that 
defendants,  as  public  warehousemen  storing  grain  in  their  own  ware- 
houses, are  enabled  to,  and  do,  overbid  legitimace  grain  dealers  b}* 
exacting  from  them  the  established  rate  for  storage  while  they  give  up 
a  part  of  the  storage  charges  when  they  buy  or  sell  for  themselves. 
By  this  practice  of  buying  and  selling  through  their  own  elevators  the 
position  of  equalit}'  between  them  and  the  public  whom  they  are  bound 
to  serve  is  destroyed,  and  by  the  advantage  of  their  position  they  are 
enabled  to  crush  out,  and  have  nearly  crushed  out,  competition  in  the 
largest  grain  market  of  the  world.  The  result  is,  that  the  warehouse- 
men own  three-fourths  of  all  the  grain  stored  in  the  public  warehouses 
of  Chicago,  and  upon  some  of  the  railroads  the  only  buyers  of  grain  are 
the  warehousemen  on  that  line.  The  grades  established  for  different 
qualities  of  grain  are  such  that  the  grain  is  not  exactly  of  the  same 
quality  in  each  grade,  and  the  difference  in  market  price  in  different 
qualities  of  the  same  grade  varies  from  two  cents  per  bushel  in  the 
better  grades  to  fifteen  cents  in  the  lower  grades.  The  great  bulk  of 
grain  is  brought  b}-  rail  and  in  car-loads  and  is  inspected  on  the  tracks, 
and  the  dut^-  of  the  warehousemen  is  to  mix  the  car-loads  of  grain  as 
they  come.  Such  indiscriminate  mixing  gives  an  average  qualitj'  of 
grain  to  all  holders  of  warehouse  receipts.  Where  the  warehouseman 
is  a  buyer  the  manipulation  of  the  grain  may  result  in  personal  advan- 
tage to  him.  Not  only  is  this  so,  but  the  warehouse  proprietors  often 
overbid  other  dealers  as  much  as  a  quarter  of  a  cent  a  bushel  and  im- 
mediately re-sell  the  same  to  a  private  buyer  at  a  quarter  of  a  cent  less 
than  they  paid,  exacting  storage  which  more  than  balances  their  loss. 
In  this  way  the}-  use  their  business  as  warehousemen  to  drive  out  com- 
petition with  them  as  buyers.  It  would  be  idle  to  expect  a  warehouse- 
man to  perform  his  duty  to  the  public  as  an  impartial  holder  of  the 
grain  of  the  different  proprietors  if  he  is  permitted  to  occupy  a  position 
where  his  self-interest  is  at  variance  with  his  duty.  In  exercising  the 
public  employment  for  which  he  is  licensed  he  cannot  be  permitted  to 
use  the  advantage  of  his  position  to  crush  out  competition  and  to  com- 
bine in  establishing  a  monopoly  by  which  a  great  accumulation  of 
grain  is  in  the  hands  of  the  warehousemen,  liable  to  be  suddenly  thrown 
upon  the  market  whenever  they,  as  speculators,  see  profit  in  such 
course.  The  defendants  are  large  dealers  in  futures  on  the  Chicago 
Board  of  Trade,  and  together  hold  an  enormous  supply  of  grain  ready 
to  aid  their  opportunities  as  speculators.  The  warehouseman  issues 
his  own  warehouse  receipt  to  himself.  As  public  warehouseman  he 
gives  a  receipt  to  himself  as  individual,  and  is  enabled  to  use  his  own 
receipts  for  the  purpose  of  trade  and  to  build  up  a  monopoly  and  de- 
stroy competition.  That  this  course  of  dealing  is  inconsistent  with  the 
full  and  impartial  performance  of  his  duty  to  the  public  seems  clear. 
The  defendants  answered  that  the  practice  had  a  beneficial  effect  upon 


UNITED   STATES    EX    REL.    V.   DELAWARE   &   H.    R.    CO.    ET   AL.      277 

producers  and  shippers,  and  naturally  were  able  to  prove  that  when, 
by  reason  of  their  advantages,  they  were  overbidding  other  dealers 
there  was  a  benefit  to  sellers,  but  there  was  an  entire  failure  to  show 
that  in  the  general  average  there  was  any  public  good  to  producers  or 
shippers. 

Decree  affirmed. 


UNITED  STATES  ex  eel  v.  DELAWARE  &  HUDSON  RAIL- 
ROAD  COMPANY  ET  AL. 

Supreme  Court  of  the  United  States,  1909. 

[29  Sup.  Ct.  527.1] 

Six  writs  of  error  to  the  Circuit  Court  of  the  United  States  for  the 
Eastern  District  of  Pennsylvania  to  review  judgments  denying  manda- 
mus to  compel  certain  railway-  carriers  to  refrain  from  interstate  trans- 
portation of  coal  from  the  Pennsylvania  anthracite  regions.  Reversed 
and  remanded  for  further  proceedings.  Also  six  appeals  from  the  Cir- 
cuit Court  of  the  United  States  for  the  Eastern  District  of  Pennsylvania 
to  review  decrees  dismissing  bills  in  equity  seeking  to  accomplish  the 
same  result  by  injunction.  Reversed  and  remanded  for  further  pro- 
ceedings. 

That  it  uses,  in  the  conduct  of  its  business  as  a  common  carrier, 
approximately  1,700,000  tons  of  anthracite  coal,  of  pea  size  or  smaller, 
annually,  and  will  require  more  for  such  use  in  the  future  ;  that  to 
obtain  this  coal  in  these  economic  sizes  it  is  necessary  to  break  up  coal, 
leaving  the  larger  sizes,  which  must  be  disposed  of  otherwise  ;  that 
great  waste  would  result  if  it  were  forbidden  to  transport  to  market  in 
interstate  commerce  these  larger  sizes  thus  resulting. 

That  defendant's  rights  to  acquire  its  holding  of  coal  land,  its  rights 
to  own  and  mine  coal  and  to  transport  the  same  to  market  in  other 
states  as  well  as  in  Pennsylvania,  and  its  leases  of  other  railroads,  were 
acquired  many  years  prior  to  the  enactment  of  the  so-called  "  interstate 
commerce  act,"  and  of  the  said  amendment  thereto  known  as  the  "  com- 
modities clause." 

Mr.  Justice  White  delivered  the  opinion  of  the  court:  We  then 
construe  the  statute  as  proliibiting  a  railroad  compan3'  engaged  in  inter- 
state commerce  from  transporting  in  such  commerce  articles  or  com- 
modities under  the  following  circumstances  and  conditions:  (a)  When 
the  article  or  commodity  has  been  manufactured,  mined,  or  produced 
by  a  carrier  or  under  its  authorit}-,  and,  at  the  time  of  transportation, 
the  carrier  has  not,  in  good  faith,  before  the  act  of  transportation,  dis- 
sociated itself  from  such  article  or  commodity ;  (b)  When  the  carrier 
owns  the  article  or  commodity  to  be  transported,  in  whole  or  in  part ; 

1  Only  the  conclusions  are  printed.  —  Ed. 


278   UNITED  STATES  EX  REL.  V.   DELAWARE  A  H.  R.  CO.  ET  AL. 

(c)  When  the  carrier,  at  the  time  of  transportation,  has  an  interest, 
direct  or  indirect,  in  a  legal  or  equitable  sense,  in  the  article  or  com- 
modit}',  not  including,  therefore,  articles  or  commo<lities  manufactured, 
mined,  produced,  or  owned,  etc. ,  b}'  a  bona  fide  corporation  in  which 
the  railroad  company  is  a  stockholder. 

The  question  then  arises  whether,  as  thus  construed,  the  statute  was 
inherently  within  the  power  of  Congress  to  enact  as  a  regulation  of 
commerce.  That  it  was,  we  think  is  apparent ;  and  if  reference  to 
authority  to  so  demonstrate  is  necessar}',  it  is  afforded  by  a  considera- 
tion of  the  ruling  in  the  New  York,  N.  H.  &  H.  R.  Co.  Case,  to  which 
we  have  previous!}'  referred.  We  do  not  say  tliis  upon  the  assumption 
that,  by  the  grant  of  power  to  regulate  commerce,  the  authority  of  the 
government  of  the  United  States  has  been  undul}*  limited,  on  the  one 
hand,  and  inordinately  extended,  on  the  other,  nor  do  we  rest  it  upon 
the  hj'pothesis  that  the  power  conferred  embraces  the  right  to  abso- 
lutely prohibit  the  movement  between  the  states  of  lawful  commodities, 
or  to  destroy  the  governmental  power  of  the  states  as  to  subjects  within 
their  jurisdiction,  however  remotely  and  indirectly  the  exercise  of  such 
powers  may  touch  interstate  commerce.  On  the  contrary,  putting  these 
considerations  entirely  out  of  mind,  the  conclusion  just  previousl}' 
stated  rests  upon  what  we  deem  to  be  the  obvious  result  of  the  statute 
as  we  have  interpreted  it ;  that  it  merely  and  unequivocally  is  confined 
to  a  regulation  which  Congress  had  the  power  to  adopt  and  to  which 
all  pre-existing  rights  of  the  railroad  companies  were  subordinated. 
Armor  Packing  Co.  v.  United  States,  209  U.  S.  56,  52  L.  ed.  681,  28 
Sup.  Ct.  Rep.  428.1 

1  Compare  New  York,  N.  H.  &  H.  B.  R.  Co.  v.  Interstate  Com.  Com.,  200  U.  S. 
361.  — Ed. 


FELL   V^  KNIGHT.  279 

CHAPTER   V. 

PROVISION   OF   ADEQUATE   FACILITIES. 


FELL  V.   KNIGHT. 
Exchequer,   1841. 

[8  M.  ^-  IV.  269.  J 

[Case.  The  declaration  stated  that  the  defendant  did  keep  a  certatn 
common  inn  for  the  reception  of  travellers,  that  the  defendant  had  suf- 
ficient room  and  accommodation  for  the  plaintiff,  that  the  plaintiff  was 
ready  and  willing  to  pay  therefor;  nevertheless  that  the  defendant  not 
regarding  his  duty  as  such  innkeeper,  denied  the  plaintiff  accommo- 
dation, etc. 

Plea.  That  the  defendant  offered  to  the  plaintiff  to  allow  him  to 
sleep  in  any  one  of  certain  bedrooms  ;  but  the  plaintiff  refused  to  sleep 
in  any  of  said  bedrooms,  but  requested  that  candles  might  be  brought 
him  in  order  that  he  might  sit  up  all  night  in  another  upstairs  room  in 
said  inn,  which  the  defendant  tlien  reasonabl}'  refused.] 

Lord  Abinger,  C.  B.  I  am  of  opinion  that  the  plea  is  sufficient.  I 
do  not  think  a  landlord  is  bound  to  provide  for  his  guest  the  precise 
room  the  latter  maj-  select.  Where  the  guest  expresses  a  desire  of  sit- 
ting up  all  night,  is  the  landlord  bound  to  supply  him  with  candle-light 
in  a  bedroom,  provided  he  oflfers  him  another  proper  room  for  the  pur- 
pose? The  plea  shows,  that  the  landlord  did  everj'thing  that  was 
reasonable.  The  short  question  is,  is  a  landlord  bound  to  comply  with 
the  caprice  of  his  guests,  or  is  he  justified  in  saying.  You  shall  not  stay 
in  a  room  in  this  way,  and  under  these  circumstances?  I  think  he  is 
not  bound  to  do  so.  All  that  the  law  requires  of  him  is,  to  find  for  his 
guests  reasonable  and  proper  accommodation  ;  if  he  does  that,  he  does 
all  that  is  requisite.  I  am  also  inclined  to  think,  notwithstanding  the 
case  which  has  been  cited  of  Rex  v.  Jones,  that  the  declaration  is  bad 
for  want  of  an  allegation  of  a  tender  of  the  amount  to  which  the  inn- 
keeper would  be  reasonably  entitled  for  the  entertainment  furnished  to 
his  guest;  it  is  not  sufficient  for  the  plaintiff  to  allege  that  he  was 
ready  to  pay ;  he  should  state  further  that  he  was  willing  and  offered 
to  pay.  There  may  be  cases  where  a  tender  may  be  dispensed  with ; 
as,  for  instance,  where  a  man  shuts  up  his  doors  or  windows,  so 
that  no  tender  can  be  made  ;  but  I  rather  think  those  facts  ought  to  be 
stated  in  the  indictment  or  declaration ;  and  I  have,  therefore,  some 
doubt  as  to  the  complete  correctness  of  the  judgment  of  m}'  Brother 
Coleridge,  in  the  case  cited:  but  it  is  not  necessary-  to  decide  that  point 
in  the  present  case.     This  rule  must  be  discharged. 

Alderson,  B.,  and  Rolfe,  B.,  concurred.  JRule  discharged. 


280  DOYLE   v.. WALKER. 


DOYLE  V.  WALKER. 
Queen's  Bench,  Upper  Canada,  1867. 

(29   Upp.   Can.  Q.  B.  502.] 

Draper,  C.  J.,  delivered  the  judgment  of  the  Court.  The  plaintiff 
neither  asserts  nor  proves  an}-  special  contract.  He  rests  his  case  upon 
what  he  assumes  to  be  his  right  resulting  from  his  being  a  guest  in  an 
iiin,  and  the  defendant  being  the  innkeeper.  He  assumes  that  having 
been  let  into  possession  of  a  room,  he  has  acquired  such  an  exclusive 
right  of  possession  as  against  his  landlord,  so  long  as  he  continues  to  oc- 
cupy it,  that  the  latter  is  liable  as  a  trespasser  for  entering  and  removing 
his  trunks  out  of  it.  We  do  not  so  understand  the  law.  The  contention 
appears  to  us  to  be  inconsistent  with  the  well  settled  duties,  liabilities, 
and  rights  of  the  innkeeper.  Whatever  may  be  the  traveller's  rights 
to  be  received  as  a  guest  and  to  be  reasonably  entertained  and  accom- 
modated, the  landlord  has,  in  our  opinion,  the  sole  right  to  select  the 
apartment  for  the  guest,  and,  if  he  finds  it  expedient,  to  change  the 
apartment  and  assign  the  guest  another,  without  becoming  a  trespasser 
in  making  the  change.  If,  having  the  necessary  convenience,  he  re- 
fuses to  afford  reasonable  accommodation  he  is  liable  to  an  action,  but 
not  of  trespass.  There  is  no  implied  contract  that  a  guest  to  whom  a 
particular  apartment  has  been  assigned  shall  retain  that  particular 
apartment  so  long  as  he  chooses  to  pay  for  it.  We  think  the  contention 
on  the  plaintiff's  part  involves  a  confusion  between  the  character  and 
position  of  an  innkeeper  and  a  lodging  housekeeper. 

It  appears  to  us  further,  that  although  the  innkeeper  is  bound  to  re- 
ceive, the  guest  must  not  only  be  ready  and  willing,  and  before  he  can 
insist  as  of  right  to  be  received  that  he  must  offer,  to  pa}'  whatever  is  the 
reasonable  charge ;  and  that  a  guest  who  has  been  received  loses  the 
right  to  be  entertained  if  he  neglects  or  refuses  to  pay  upon  reasonable 
demand.  The  plaintiff's  bill  accrued  due  de  die  in  diem,  and  had  been 
in  arrear  though  frequently  demanded.  On  both  points,  we  think,  upon 
the  evidence  the  plaintiff  failed,  and  that  there  should  be  a  new  trial 
without  costs. 


BROWNE   V.   BRANDT.  281 

BROWNE  V.  BRANDT. 
King's  Bench  Division,  England,  1902. 

[1902,  1  K.  B.  696.1] 

Lord  Alverstone,  C.  J.  The  plaintiff  in  this  case  contends  that 
the  defendant  has  broken  his  common  law  duty  as  an  innkeeper  to 
provide  accommodation  for  travellers,  and  that  this  action  can  be  main- 
tained if  the  defendant  had  a  room  at  the  inn  in  which  the  plaintiff 
could  have  passed  the  night.  The  county  court  judge  has  found  that 
the  defendant's  house  was  full  as  regarded  proper  sleeping  accommo- 
dation ;  that  there  was  no  empty  bedroom ;  that  there  were  two  rooms 
available  for  the  accommodation  of  the  plaintiff,  and  that  that  accommo- 
dation was  refused.  I  do  not  think  the  question  whether  the  plaintiff 
demanded  to  take  the  one  sitting-room  was  submitted  to  the  county 
court  judge,  but  1  do  not  wish  to  decide  this  case  on  narrow  grounds ; 
we  must  assume  that  there  was  some  place  in  the  house  where  the 
defendant  might  have  permitted  the  plaintiff  to  stay  for  the  night.  I 
think  that  we  should  be  straining  the  common  law  liability  of  an  inn- 
keeper if  we  were  to  hold  that  the  plaintiff  has  a  good  cause  of  action. 
The  true  view  is,  in  my  opinion,  that  an  innkeeper  may  not  pick  and 
choose  his  guests ;  he  must  give  the  accommodation  he  has  to  persons 
who  come  to  the  inn  as  travellers  for  rest  and  refreshment.  I  cannot 
think  that  the  authorities  to  which  we  have  been  referred  shew  that 
where  an  innkeeper  provides  a  certain  number  of  bedrooms  and  sitting- 
rooms  for  the  accommodation  of  guests  he  is  under  a  legal  obligation 
to  receive  and  shelter  as  many  people  as  can  be  put  into  the  rooms  with- 
out overcrowding.  1  think  a  person  who  comes  to  the  inn  has  no  legal 
right  to  demand  to  pass  the  night  in  a  public  sitting-room  if  the  bed- 
rooms  are  all  full,  and  I  think  that  the  landlord  has  no  obligation  to 
receive  him.  The  landlord  must  act  reasonably ;  he  must  not  cap- 
tiously or  unreasonably  refuse  to  receive  persons  when  he  has  proper 
accommodation  for  them.  Here  the  county  court  judge  has  found,  in 
effect,  that  the  defendant  did  act  reasonably.  For  these  reasons  I  am 
of  opinion  that  the  appeal  must  fail. 

1  Only  the  opinion  of  Lord  Alverstone,  C.  J.,  is  printed.  The  other  justices  con- 
curred. —  Ed. 


282  GARDNER  V.   PROVIDENCE   TELEPHONE   CO. 


GARDNER  v.  PROVIDENCE  TELEPHONE  CO. 
Sdpkeme  Court  of  Rhode  Island,  1901. 

[50  Atl.  Rep.  1014.] 

Per  Curiam.  The  evidence  shows,  as  stated  b}-  the  complainant, 
that  the  defendant  refuses  to  furnish  a  long-distance  extension  set  in 
connection  with  a  grounded  telephone  circuit.  The  evidence  does  not 
convince  a  majorit}-  of  the  court  that  such  a  combination  can  be  made 
generall}'  without  impairment  of  the  service.  The  uniform  practice  of 
the  company  is  against  this  contention.  The  compan}'  offers  to  annex 
to  the  complainant's  grounded  circuit,  for  a  reasonable  price,  such  an 
extension  set  as  is  appropriate  for  the  circuit,  and  which  it  contends 
will  give  satisfactory  service.  This  is  all  that  the  complainant  can 
demand.  He  is  in  default  in  not  requesting  the  company  to  provide 
what  it  8a3S  it  is  willing  to  give  him,  and  in  insisting  on  the  exact  form 
of  apparatus  which  he  has  installed.  It  is  for  the  company,  not  for  the 
subscriber,  to  determine  the  type  of  apparatus  it  shall  use,  and  there 
is  no  evidence  that  the  type  it  offers  is  inadequate.  These  points  were 
full}'  considered  b}'  the  court  upon  the  former  hearing,  as  a  careful 
examination  of  the  opinion  will  show.  It  may  further  be  observed 
that  in  this  case  there  is  no  evidence  that  the  defendant's  charge  for  a 
metallic  circuit  combined  with  a  long-distance  set  is  exorbitant.  The 
well-known  superiority  of  a  metallic  circuit  to  a  grounded  one  in  all 
essential  features,  and  the  greater  cost  of  construction,  make  it  reason- 
able to  charge  more  for  the  use  of  the  metallic  circuit  than  for  the  other. 
The  question  of  price  is  not  strictly  before  the  court,  for  the  complain- 
ant does  not  desire  this  kind  of  service,  and  the  defendant  will  not 
tolerate  the  combination  which  the  complainant  has  made  at  any  price. 

The  motion  for  re-argument  is  denied. 


SEARLES   V.   MANN   BOUDOIR   CAR   CO.  283 


SEARLES  V.   MANN  BOUDOIR  CAR  CO, 

Circuit  Court  of  the  United  States,   1891. 

[45  Fed.  Rep.  330.] 

Action  to  recover  damages  for  alleged  wrongful  refusal  of  defendant's 
conductor  to  sell  plaintiff  a  berth  in  a  sleeping-car.  On  the  30th  da,}' 
of  June,  1888,  plaintiff  entered  defendant's  sleeping-car  at  Meridian, 
Miss.,  and  applied  to  the  sleeping-car  conductor  for  a  berth.  He  re- 
ceived answer  that  all  the  space  was  sold,  and  he  could  not  be  accom- 
modated. He  claimed  that  there  was  a  vacant  upper  berth  that  he 
should  have.  This  upper  berth  was  part  of  a  section  that  had  been 
bought  by  a  Mr.  Watson,  to  whom  plaintiff  applied  for  the  upper  berth, 
and  was  refused.  There  was  a  rule  of  defendant  companj-  to  the  effect 
that  no  one  party  could  retain  an  entire  section  when  there  was  appli- 
cants for  berths. 

Hill,  J.  (charging  jury).  The  issues  which  you  are  to  determine 
from  the  evidence,  are :  First.  Did  the  conductor  of  the  sleeping-car 
then  owned  and  operated  by  the  defendant  company  unlawfully  and 
wrongfully  refuse  to  sell  to  the  plaintiff  a  ticket  entitling  him  to  the 
use  and  occupation  of  one  berth  in  said  car  from  Meridian,  in  this  State, 
to  Cincinnati,  in  the  State  of  Ohio,  as  alleged  in  the  declaration,  and 
denied  in  the  plea  of  defendant?  To  entitle  the  plaintiff  to  a  verdict 
in  his  favor  the  burden  is  ugon  him  to  reasonably  satisfy  you  from  the 
evidence  that  the  conductor  then  in  charge  of  said  car  did  unlawfully 
and  wrongfuUj'  refuse  to  sell  plaintiff  such  ticket,  and  place  him  in 
possession  of  one  berth  in  said  car.  The  uncontradicted  testimon}'  is 
that  soon  after  the  train  to  which  the  sleeper  was  attached  left  Meridian 
the  plaintiff  did  apply  to  the  conductor  for  a  berth  in  the  sleeper  from 
Meridian  to  Cincinnati,  and  tendered  him  the  money  for  the  fare  ;  to 
which  the  conductor  replied  that  he  had  no  vacant  berth  at  his  disposal, 
but  that  there  was  one  berth  in  a  section  (or  room,  as  they  are  con- 
structed on  this  class  of  sleepers),  all  of  which  section  had  been  pur- 
chased and  paid  for  in  New  Orleans,  and  which  upper  berth  was  not 
then  occupied  b}'  the  purchaser,  and  who  had  only  purchased  the  berth 
to  Birmingham,  Ala. ;  that  if  plaintiff  would  apply  to  Mr.  Watson,  the 
purchaser  and  occupant,  he  thought  he  would  let  plaintiff  have  it ;  to 
which  plaintiff  replied  that  he  had  the  right  to  it,  and  demanded  it 
on  such  right ;  to  which  the  conductor  replied  that  Mr.  Watson  had  the 
right  to  its  use  to  Birmingham,  and  that  he  could  not  deprive  him  of  it, 
but  that  he  would  ask  him  for  it  for  the  use  of  the  plaintiff.  He  did  so 
apply,  and  Watson  refused  to  surrender  the  use  of  the  berth  to  the 
plaintiff.  These  facts  being  admitted,  you  are  instructed  that  the 
defendant  company  had  the  right  to  sell  the  use  of  the  whole  section 
or  room  to  Watson,  and,  having  done  so,  and  received  the  paj'  for  it, 


284  SEARLES   V.   MANX   BOUDOIR   CAR  CO. 

"Watson  was  entitled  to  the  use  of  the  entire  section  for  himself  and 
such  other  persons  as  he  might  choose,  and  who  was  otherwise  a 
proper  person  to  occupy-  the  sleeper  to  Birmingham,  Ala.,  and  that  the 
conductor  was  guilty  of  no  wrong  in  refusing  to  sell  the  use  of  this 
berth  to  the  plaintiff,  and  put  him  in  possession  of  it;  and  therefore 
jou  are  instructed  to  return  your  verdict  in  favor  of  the  defendant  on 
the  issue  on  the  first  count  in  the  declaration. 

The  second  issue  which  you  will  determine  from  the  evidence  is :  Did 
the  conductor  unlawfully  and  wrongfully  refuse  to  sell  the  plaintiff  a 
ticket  entitling  him  to  the  use  of  one  berth  on  the  sleeper  from  Bir- 
mingham to  Cincinnati,  as  alleged  in  the  second  count  in  the  declara- 
tion, and  denied  by  the  plea  of  the  defendant?  The  burden  of  proving 
this  allegation  in  the  plaintiff's  declaration  is  on  him.  Tliere  being  some 
conflict  in  the  testimony  on  this  point,  you  are  instructed  that,  while 
the  conductor  might  have  sold  to  plaintiff  a  ticket  entitling  him  to  the 
use  of  this  berth  from  Birmingham  to  Cincinnati  before  reaching  the 
former  place,  he  was  not  under  any  obligation  to  do  so,  and  his  refusal 
80  to  do  created  no  liabilit}*  upon  the  defendant ;  but  that,  when  the 
train  arrived  at  Birmingham,  and  Watson's  right  of  occupancy  had 
ceased,  and  the  plaintiff  had  applied  for  this  or  an}*  other  vacant  and 
unoccupied  berth  in  the  sleeper,  and  tendered  tlie  usual  fare  for  the 
use  of  it,  and  was  refused  b}-  the  conductor,  then  such  refusal  would 
have  been  wrongful,  and  the  finding  on  this  issue  should  be  for  the 
plaintiff,  and  entitle  him  to  such  reasonable,  actual  damages  as  in  30ur 
judgment,  from  the  proof,  he  has  sustained  by  reason  of  being  deprived 
of  the  use  of  the  berth  from  Birmingham  to  Cincinnati,  less  the  amount 
of  the  fare.  You  are  further  instructed  that  if  the  proof  shows  that 
application  had  been  made  for  a  berth  in  the  sleeper  b}-  another  man  at 
Meridian,  before  the  plaintiff  made  application,  then  the  conductor  had 
tlie  right  to  sell  the  ticket  for  the  berth  to  him  in  preference  to  the 
l)laintiff.  You  are  the  sole  judges  of  the  weiglit  to  be  given  to  the 
testimony  of  the  witnesses  on  both  sides.  You  will  reconcile  anj-  con- 
flict that  ma}'  exist  in  the  testimony  of  the  witnesses,  if  jou  can ;  if 
not,  tlien  you  will  determine  from  all  the  testimon}'  which  most  prob- 
ably gave  the  facts  truly.  In  considering  the  testimon}'  3'ou  will  con- 
sider the  interest  each  witness  may  have  in  the  result  of  your  verdict, 
tlie  manner  in  which  the}*  have  testified,  and  the  reasonableness  of 
their  statements  in  connection  with  all  the  testiraon}'. 

The  jury  returned  a  verdict  in  favor  of  defendant  on  both  counts  of 
the  declaration.^ 

1  Compare :  Boudoir  Car  Co.  v.  Dnpre,  54  Fed.  646 ;  Palace  Car  Co.  w.  Taylor,  65 
Ind.  153.  — £0. 


FARNSWORTH  V.   GROOT.  285 

BREDDON  V.  GREAT  NORTPIERN  RAILWAY  COMPANY. 

Exchequer,  England,  1858. 

[28  L.J.Exch.N.  S.  51.1] 

Pollock,  C.  B.  The  question  was  substantially  left  to  the  jury 
whether,  untier  all  the  circumstances,  the  detention  of  these  cattle  was 
the  result  of  the  snow,  or  was  owing  to  the  negligence  or  supineness  of 
the  company's  servants.  The  jury  have  found  upon  that  question  in 
favor  of  the  defendants,  and  rightly.  There  is  a  distinction  between 
trains  for  passengers  and  for  goods  or  cattle.  The  owners  of  goods 
or  cattle  have  no  right  to  complain  that  extraordinary  efforts  which  are 
made  to  forward  passengers  are  not  used  to  forward  cattle  or  goods. 
The  rates  of  carriage  are  different,  and  the  cattle  or  goods  sent  by 
goods  trains  pay  at  a  lower  rate  then  they  would  if  sent  by  passenger 
trains.  The  contract  entered  into  was  to  carry  the  cattle  to  Nottingham 
without  delay,  and  in  a  reasonable  time  under  ordinary  circumstances. 
If  a  snowstorm  occurs  which  makes  it  impossible  to  carr}'  the  cattle, 
except  b}'  extraordinary'  efforts,  involving  additional  expense,  the  com- 
pany are  not  bound  to  use  such  means  and  to  incur  such  expense. 


FARNSWORTH  v.  GROOT. 
Supreme  Court  of  New  York,  1827. 

[6  Cow.  698.] 

On  error  from  the  Schenectady  C.  P.  Groot  sued  Farnsworth  in  a 
justice's  court,  in  trespass,  for  obstructing  the  former  in  passing  a  lock 
on  the  Erie  canal,  and  recovered  $5.  On  appeal  to  the  Schenectady 
C.  P.,  Groot  recovered  $15. 

In  the  latter  court  it  was  proved  at  the  trial  that  Groot  had  arrived 
at  the  lock  before  Farnsworth,  both  passing  west.  It  was  regularly 
Groot's  turn  to  pass  the  lock,  which  was  not  more  than  a  quarter  empty 
when  Farnsworth  arrived.  Groot  commanded  a  freight  boat,  and  Farns- 
worth a  packet  boat.  Farnsworth,  on  coming  up,  asked  permission  of 
Groot  to  pass  first,  which  Groot  refused.  Farnsworth  then  demanded 
it  as  a  right.  On  being  refused,  he  ordered  his  hands  to  push  back 
Groot's  boat,  which,  on  seeing  the  packet  boat  approaching,  the  latter 
had  hauled  up  into  the  jaws  of  the  lock.  The  boats  were  thus  both 
wedged  into  the  lock.  Farnsworth's  hands  attempted  to  push  back 
Groot's  boat,  but  it  was  held  fast  by  his  hands.  This  was  substantially 
the  case,  as  made  out  b}'  Groot,  the  plaintiff  below.  According  to  the 
defendant's  witnesses,  he  (the  defendant  below)  gave  no  orders  to  in- 

1  Only  one  opinion  is  printed.  —  Ed. 


286  FARNSWORTII   V.    GROOT. 

teifere  with  Groot's  boat ;  but  it  was  some  of  the  passengers  who 
pushed  the  boat.  After  about  half  an  hour's  detention,  the  defendant 
below  ordered  his  boat  back,  and  the  plaintiflf  below  passed  first. 

The  court  below  denied  a  motion  for  a  non-suit,  at  the  close  of  the 
plaintiff's  testimon}' ;  and  after  the  defendant  had  closed  his  case, 
decided  that  his  matters  of  defence  were  insufficient ;  and  so  instructed 
the  jur}-,  who  found  for  the  plaintiff  below. 

The  defendant  below  excepted ;  and  the  cause  came  here  on  the 
record  and  bill  of  exceptions. 

Curia^  per  Savage,  C.  J.  It  is  important,  first,  to  ascertain  the  rela- 
tive rights  of  the  parties.  63-  the  fourth  section  of  the  act  for  the  main- 
tenance and  protection  of  the  Erie  and  Champlain  canals,  and  the  works 
conuectetl  therewilli,  passed  April  13,  1820  (sess.  43,  c.  202),  it  is, 
among  other  things,  enacted  that,  "  if  there  sliall  be  more  boats,  or 
otlier  floating  things,  than  one  below,  and  one  above  an}-  lock,  at  the 
same  time,  within  the  distance  aforesaid  (100  jards),  such  boats  and 
other  floating  things  shall  go  up  and  come  down  through  such  lock  In* 
turns  as  aforesaid,  until  they  shall  have  passed  the  same  ;  in  order  tliat 
one  lock  full  of  water  may  serve  two  boats  or  other  floating  things." 
By  the  tenth  section  (p.  18(5),  it  is  enacted,  "  that,  in  all  cases  in  which 
a  boat,  intended  and  used  chiefl}*  for  tlie  carriage  of  persons  and  their 
baggage,  shall  overtake  any  boat,  or  other  floating  thing,  not  intended 
or  used  chiefly  for  such  purpose,  it  shall  be  the  duty  of  the  boatman,  or 
person  having  charge  of  the  latter,  to  give  the  former  every  practicable 
facility  for  passing ;  and,  whenever  it  shall  become  necessary  for  that 
purpose,  to  stop,  until  such  boat  for  the  carriage  of  passengers  shall 
have  fully  passed."  And  a  penalty  of  $10  is  imposed  for  a  violation 
of  this  duty. 

It  was  evidently  the  intention  of  the  legislature,  that  packet  boats 
should  not  be  detained  by  freight  boats;  as  it  was  known  that  the 
packets  would  move  faster  than  the  freight  boats ;  and,  in  the  language 
of  the  act,  every  facilitj'  was  intended  to  be  afforded  them.  But  the 
right  of  passing  when  both  are  in  motion  might  be  of  little  use  if  tiie 
packets  must  be  detained  at  every  lock  until  all  the  freiglit  boats  there 
have  passed  before  it  The  fair  construction  of  the  act  undoubtedly  is, 
that  the  packets  shall  have  a  preference  on  an}-  part  of  the  canal;  and, 
to  be  of  an}'  use,  this  right  must  exist  at  the  locks  as  well  as  on  any 
other  part  of  the  canal. 

In  my  judgment,  therefore,  the  defendant  below  had  the  right  of 
entering  the  lock  first,  and  the  plaintiff  below  was  the  aggressor  in 
attempting  to  obstruct  the  exercise  of  that  right.  Did  the  defendant, 
then,  do  more  than  he  lawfully  might  in  endeavoring  to  enforce  his 
rights?  No  breach  of  the  peace  is  pretended.  No  injury  to  the  boat 
was  done.  The  plaintiff  below  was  detained,  and  so  was  the  defendant; 
but  the  detention  was  occasioned  by  the  fault  and  misconduct  of  the 
plaintiff  himself.  What  right,  under  this  view  of  the  subject,  has  the 
plaintiff  below  to  complain  ?     The  defendant  below  was  the  injured 


TIERNEY  V.   N.   Y.    CENTRAL   AND   HUDSON   RIVER   R.   R.         287 

part}'.  The  plaintiff  below  was  indeed  liable  to  a  penalt}-  \  but  that 
could  not  prevent  the  defendant  below  from  using  proper  means  to 
propel  his  boat,  and  to  remove  the  obstruction  caused  by  the  plaintiff 
below.  Suppose,  in  any  part  of  the  canal,  the  defendant  below  had 
overtaken  the  plaintiff  below,  and  the  latter  had  refused  to  permit  the 
former  to  pass,  and  had  placed  his  boat  across  the  canal,  would  not  the 
defendant  below  have  been  justified  in  attempting  to  remove  the  ob- 
struction, without  injury  or  breach  of  the  peace?  This,  I  presume,  will 
not  be  denied.  The  defendant  below  has  done  no  more.  I  think, 
therefore,  the  court  below  erred  in  refusing  to  instruct  the  jur}-  that 
the  plaintiff  was  not  entitled  to  recover ;  and  the  judgment  should  be 
reversed.  Judgment  reversed.^ 


TIERNEY  V.  NEW  YORK   CENTRAL  AND   HUDSON   RIVER 

RAILROAD   CO. 

Court  of  Appeals,  New  York,  1879. 

[76  N.  Y.  305.2] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  third  judicial  department,  affirming  a  judgment  in  favor  of  plain- 
tiff, entered  upon  a  verdict.     Mem.  of  decision  below,  10  Hun,  569. 

This  action  was  brought  to  recover  damages  to  a  car  load  of  cab- 
bages, delivered  to  defendant  for  transportation,  alleged  to  have  been 
sustained  through  the  negligence  of  the  defendant  in  not  forwarding  in 
due  time. 

Danforth,  J.  On  receiving  the  cabbages  in  question  and  payment 
of  freight,  the  defendants  were  bound  to  forward  them  immediatel}-  to 
their  destination,  —  such  was  the  dut}^  of  a  carrier  of  goods  at  common 
law,  for  if  he  had  not  the  means  of  transportation  he  might  refuse  to 
receive  the  goods,  and  such  is  the  duty  of  a  railroad  corporation.  This 
is  so  under  the  statute.  By  its  terms  the  corporation  is  required  to 
furnish  "accommodations"  only  for  such  property  as  shall  be  offered  a 
reasonable  time  before  the  arrival  of  the  time  fixed  hy  public  notice 
for  the  starting  of  its  trains.  Laws  of  1850,  chap.  140,  §  36.  And  in 
the  absence  of  a  legal  excuse  the  carrier  is  answerable  for  any  delay 
beyond  the  time  ordinarily  required  for  transportation  by  the  kind  of 
conveyance  which  he  uses.  Blackstock  v.  N.  Y.  &  Erie  R.  R.  Co.,  20 
N.Y.  48;  Mann  v.  Burchard,  40  Vt.  326;  Illinois  C.  R.  R.  Co.  v. 
McClennan,  54  111.  58. 

None  of  the  exceptions  to  the  charge  were  well  taken.     The  learned 

*  Compare :  Briddon  v.  R.  R.,  28  L.  J.  (N.  S.)  Ex.  51  ;  Heilliwell  v.  R.  R.,  7  Fed.  68  ; 
Johnson  i;.  R,  R.,  90  Ga.  810;  Galena  Co.  v.  Rae,  18  111.  488 ;  Selver  v.  Hall,  2  Mo. 
App.  557 ;  Express  Co.  v.  Smith,  33  Oh.  St.  511  ;  R.  R.  v.  Nelson,  1  Cold.  272.  — Ed. 

*  This  case  is  abridged.  —  Ed. 


288        TIERNEY   V.   N.   Y.   CENTRAL   AND   HUDSON   RIVER  R.   B. 

trial  judge  instructed  the  jury  "  that  it  was  the  duty  of  the  defendant 
to  transport  the  property  in  question  to  New  York  by  the  first  train, 
unless  a  reasonable  and  proper  excuse  for  the  delay  is  shown."  To 
this  there  was  an  exception ;  * '  and  in  case  there  was  a  pressure  of 
freight  cars,  the  car  in  question  should  be  forwarded  before  forwarding 
ordinary  non-perishable  property."  "They  made  this  contract  in  re- 
gard to  perishable  property,  and  it  was  their  duty  to  forward  it  by  the 
first  train,  unless  there  was  such  a  pressure  upon  them  of  property  of  a 
similar  kind  to  be  transported,  and  which  had  arrived  before  this,  to 
make  it  impossible,"  and  again  he  says,  "  it  would  be  a  good  excuse 
if  there  was  a  pressure  of  a  similar  kind  of  property  to  be  forwarded, 
but  it  would  not  be  an  excuse  if  there  was  a  pressure  of  other  non- 
perishable  property  to  be  forwarded."     To  this  defendant  excepted. 

The  defendant's  counsel  requested  the  judge  to  charge  "that  de- 
fendant is  not  liable  for  delay,  if  such  delay  was  caused  by  an  unusual 
press  of  business,  and  an  accumulation  of  cars  beyond  the  ordinary 
capacity  of  the  road,"  and  the  judge  replied,  "within  the  limitations 
I  have  now  given,  I  so  charge"  —  to  this  qualification  there  was  an 
exception.  It  will  be  seen  that  the  attention  of  the  trial  court  was  not 
called  to  the  question  of  right  of  priorit}'  to  transportation  among 
freights  received  at  different  times.  The  whole  charge  is  applicable  to 
propert}'  received  at  the  same  time,  and  does  not  necessarily,  nor  by 
any  fair  implication,  direct  a  discrimination  in  favor  of  perishable  prop- 
erty received  after  non-perishable ;  no  request  to  charge  in  regard  to 
it  was  made ;  the  testimony  did  not  indicate  when  the  property  was 
received  which  was  sent  forward  on  the  8th  and  on  the  9th  before  3.20 
in  the  afternoon.  The  plaintiflTs  car  left  Albany  at  seven,  and  to  make 
the  question  available  to  the  defendant  the  judge  should  have  been 
asked  to  direct  the  jury  in  regard  to  it.  Elwood  v.  W.  U.  Tel.  Co.,  45 
N.  Y.  549.  I  do  not  think  that  the  question  is  before  us,  nor  indeed  that 
the  evidence  was  sufficient  to  raise  it  in  the  trial  court.  The  case  as 
presented  is  that  of  freight  at  East  Albany ;  when  it,  except  that  of 
the  plaintiffs,  reached  there  does  not  appear.  It  was  all  in  the  pos- 
session and  control  of  the  defendant  at  one  and  the  same  time.  But  if 
the  charge  of  the  trial  judge  is  construed  as  instructing  the  jurv  that 
the  pressure  of  non-perishable  property  should  not  excuse  the  delay,  I 
am  of  the  opinion  that  he  was  right,  and  the  principle  of  law  enunciated 
by  him  sound.  Wibert's  Case,  supra,  is  not  to  the  contrary.  There 
the  question  was  not  presented  as  to  the  duty  of  a  carrier  to  discrimi- 
nate in  favor  of  perishable  freight  over  non-perishable.  That  decision, 
therefore,  should  not  control  this  case.  It  is  itself  placed  upon  a  quali- 
fication to  the  peremptory  direction  of  the  statute,  and  while  it  should 
be  followed  in  similar  cases,  is  not  to  be  extended.  The  distinction 
suggested  by  the  charge  exists.  In  Cope  v.  Cordova,  1  Rawle,  203, 
the  court,  while  holding  that  the  liability  of  the  carrier  by  vessel  ceases 
when  he  lands  the  goods  at  a  proper  wharf,  adds,  "it  is  beside  the 
question  to  say  that  perishable  articles  may  be  landed  at  improper 


CUMBERLAND   TELEPHONE    AND   TELEGRAPH    CO.    V.    KELLY.     289 

times  to  the  great  damage  of  the  consignee,  —  when  such  special  cases 
arise  they  will  be  decided  on  their  own  circumstances."  Such  a  case 
was  presented  to  this  court  in  Mc Andrew  v.  Whitlock,  52  N.  Y.  40, 
where  a  carrier  was  held  liable  for  the  loss  of  certain  perishable  prop- 
erty, licorice,  under  circumstances  which  would  have  exonerated  him 
from  liability  if  it  had  not  been  perishable.  In  Marshall  v.  N.  Y.  C. 
R.R.  Co.,  45  Barb.  502  (affirmed  by  this  court,  48  N.  Y.  660),  it  was 
held  by  the  Supreme  Court  that  where  two  kinds  of  propert}',  one  per- 
ishable and  the  other  not,  are  delivered  to  a  carrier  at  the  same  time 
by  different  owners  for  transportation  and  he  is  unable  to  carry  all  the 
propert}',  he  may  give  preference,  and  it  is  his  duty  to  do  so,  to  that 
which  is  perishable.  In  this  court  the  case  turned  upon  other  points  ; 
but  referring  to  the  rule  above  stated,  Hunt,  J.,  saj's:  "The  principle 
laid  down  is  a  sound  one,  and  in  a  proper  case  would  I  think  be  held 
to  be  the  law.     It  is  not  here  important." 

The  rule  is  a  correct  one  and  is  equally  applicable  to  the  duty  of 
the  carrier  in  whose  hands  freight  has  so  accumulated  that  he  must 
give  priority  to  one  kind  over  another. 

In  requiring  the  defendant  to  receive  all  kinds  of  property,  including 
perishable,  the  statute  may  be  construed  as  imposing  upon  it  such  obli- 
gations and  duties  as  are  required  for  the  proper  and  safe  carriage  of 
that  kind  of  goods.  In  that  respect  assimilating  a  railway  corporation 
to  a  common  carrier,  bound  b}'  the  obligations  of  the  common  law  to 
carry  safely  and  immediately  the  goods  intrusted  to  him,  —  having  in  the 
exercise  of  care,  speed,  and  priority  of  transportation,  some  reference 
to  the  natural  qualities  of  the  article  and  the  effect  upon  it  of  exposure 
to  the  elements.  McAndrew  v.  Whitlock,  52  N.  Y.  40;  Marshall  v. 
N.  Y.  C.  R.  R.  Co.,  48  N.  Y.  660  ;  Feet  v.  Chicago  &  N.  W.  R.  R.  Co., 
20  Wis.  594.  We  maj'  also  take  into  consideration  the  fact  that  the 
freight  in  question  was  not  only  perishable  but  was  known  to  be  so  by 
both  parties  and  was  shipped  as  such  and  with  knowledge  on  the  plain- 
tiffs part  of  the  custom  of  the  defendant  to  give  a  preference  in  trans- 
portation to  such  goods,  and  the  parties,  though  silent,  may  be  regarded 
as  adopting  the  custom  as  part  of  the  contract. 


CUMBERLAND   TELEPHONE   &  TELEGRAPH   COMPANY 

V.  KELLY. 

Circuit  Court  op  Appeals  op  the  United  States,  1908. 

[160  Fed.  316.1] 

LuRTON,  C.  J.     What,  then,  was  the  basis  for  the  claim  of  a  viola- 
tion of  this  statute  ?    For  one  thing  it  is  said  that,  during  the  time  of 

1  The  principal  point  is  extracted.  —  Ed. 


290     CUMBERLAND   TELEPHONE   AND   TELEGRAPH   CO.   V,    KELLY. 

delay,  other  applicants  in  other  parts  of  the  city  were  given  connec- 
tion. But  as  these  other  applicants  were  within  other  cable  districts 
in  which  the  cables  were  not  congested,  this  cannot  be  said  to  be  a  dis- 
crimination. This  is  not  evidence  of  partiality  shown  them,  and  was 
not  a  discrimination  against  Kelly,  who  was  not  similarly  situated. 
Of  course,  if  we  are  to  construe  this  statute  as  one  which  overrides  the 
business  methods  under  which  the  company  carried  its  wires  in  cables 
to  the  different  areas  to  be  served,  distributing  the  wires  from  stations 
conveniently  located  within  such  business  or  cable  districts,  then,  to 
serve  any  applicant  anywhere  ahead  of  Kelly  would  be  an  illegal  dis- 
crimination. But  such  a  construction  would  lead  to  most  unjust  results,* 
and  practically  destroy  every  such  company.  If  such  a  company, 
in  good  faith,  determines  for  itself  the  limits  within  which  it  will  con- 
duct such  a  business,  and  if,  in  accordance  with  the  usual  and  approved 
methods  of  well-managed  companies,  it  divides  that  area  into  districts 
to  be  served  by  wires  carried  in  cables  to  a  point  within  it  convenient 
for  distribution,  there  is  no  discrimination  at  common  law  or  under  the 
statute,  unless  an  applicant  within  a  particular  district  is  discriminated 
against  and  others  served  within  the  same  general  area,  in  like  situa- 
tion and  under  like  conditions  with  himself.  This  was  the  view  of  the 
matter  entertained  by  the  court  below,  for  the  jury  were  instructed 
that  the  question  of  discrimination  depended  upon  the  conduct  of  the 
company  in  "the  territory  where  he  was  situated,"  and  the  case  was 
made  to  turn  by  the  charge  upon  the  question,  "  Had  the  company  fur- 
nished other  men  on  applications  for  service  in  that  locality  when  their 
cable  lines  were  filled?"  "  Could  they  make  arrangements  to  supply 
other  men  and  did  they  do  it?  Or,  on  the  other  hand,  did  they  treat 
them  all  alike  when  that  condition  of  things  appertained?"  The  sug- 
gestion made  here  in  argument,  that  it  was  the  immediate  duty  of  the 
company  to  provide  additional  wires  if  all  those  in  the  existing  cable 
were  in  use,  and  that  the  failure  to  do  this  was  a  discrimination  under 
the  statute,  was  not  by  any  charge  given  or  refused  raised  below,  and 
is  only  relevant  here  as  arising  under  the  alleged  general  purpose  of 
the  statute  to  compel  the  service  of  all  applicants  regardless  of  con- 
ditions and  methods  of  carrying  on  such  a  business.  We  have  already 
expressed  our  view  of  this  above.  There  might  be  much  in  the  sug- 
gestion, if  the  business  of  the  company  had  been  carried  on  by  giv- 
ing to  each  applicant  an  aerially  supported  pair  of  wires  running  direct 
from  the  exchange  to  each  private  telephone.  If  it  had  also  appeared 
that  it  was  the  practice  and  custom  of  the  company  to  put  up  such  a 
pair  of  wires  whenever  service  was  required,  there  would  be  evidence 
tending  to  show  discrimination  if  such  connection  should  be  denied  or 
unduly  delayed  to  one  and  furnished  to  others.  That  method  of  doing 
business,  as  we  may  judicially  take  notice,  does  prevail  where  the 
patrons  are  few  in  number.  But  there  was  evidence  tending  to  show 
that  where  the  patrons  run  up  into  the  thousands,  the  cable  system,  to 
avoid  confusion  of  wires,  becomes  necessary  for  efficient  service.     In 


CUMBERLAND   TELEPHONE   AND   TELEGRAPH   CO.   V.    KELLY.     291 

Memphis  the  city  ordinauce  compelled  the  wires  to  go  underground 
through  the  business  part  of  the  city,  and  this,  aside  from  other  con- 
siderations, involved  the  carrying  of  the  wires  deemed  necessary  for 
the  business  of  a  particular  district  in  leaden-covered  cables  and  their 
distribution  from  a  box  conveniently  situated  within  the  district.  If 
the  cable  in  particular  district  should  become  congested  it  was  usual, 
if  the  new  business  promised  a  fair  return,  to  carry  another  cable  to 
the  same  district  and  make  a  new  point  of  distribution. 

Telephone  companies,  like  similar  quasi  public  corporations,  are 
under  a  general  common-law  obligation  to  supply  reasonably  adequate 
facilities  for  supplying  the  service  which  they  hold  themselves  out  to  do. 
This  obligation  in  a  proper  proceeding,  may  be  enforced  by  compelling 
an  enlargement  of  the  plant,  or  by  an  action  for  damages  due  to  dis- 
regard of  this  duty.  The  principle  applicable  to  common  carriers 
proper  is  sufficiently  stated  with  its  qualifications  in  5  Am.  &  Eng. 
Cyc.  of  Law,  167,  168,  and  many  illustrative  cases  are  cited.  But  we 
cannot  conceive  that  this  common-law  obligation  is  within  the  intent 
and  purpose  of  this  severe  penal  act.  If,  as  we  have  before  stated, 
the  business  of  the  company  was  conducted  by  individual  wires  aeri- 
ally supported  between  the  exchange  and  the  telephones  of  the  patrons, 
and  it  was  its  usual  custom  to  string  a  pair  of  wires  upon  the  plant 
already  provided  when  a  new  customer  desired  a  telephone,  a  very 
different  question  would  be  presented.  There  was  evidence  tending 
to  show  that  to  put  in  a  new  cable  in  order  to  serve  Kelly  would  have 
taken  some  weeks  at  least,  and  would  have  cost  the  company  about 
$7000,  if  such  a  cable  was  strung  as  they  were  using.  We  cannot 
believe  that  the  Tennessee  Legislature  ever  intended  that  the  common 
law  duty  of  providing  facilities  reasonably  adapted  to  the  business 
which  might  have  with  reason  been  anticipated  should  be  enforced  by 
the  imposition  of  an  arbitrary  penalty  of  ^100  per  day  from  the  time 
when  such  connection  might  have  been  supplied  had  the  company's 
cable  capacity  not  been  full.  This  construction  would  operate  to  ruin 
any  ordinary  company,  with  profit  only  to  such  as  might  choose  to 
prosecute  a  penal  action  against  them.  No  such  construction  ought 
to  be  placed  upon  such  a  penal  statute  if  it  be  susceptible  of  a  more  just 
and  reasonable  one.  This  we  have  no  difficulty  in  doing,  inasmuch  as 
we  regard  the  statute  as  intended  onlj'  to  prevent  a  partial  and  dis- 
criminating service,  having  regard  to  the  capacity  of  the  company,  and 
the  usual  and  customary  method  under  which  its  operations  were  con- 
ducted. 


292      ST.  LOUIS,  IRON  MOUNTAIN  AND   SOUTHERN  RY.  CO.  V.  RENFROE. 


ST.  LOUIS,   IRON  MOUNTAIN  &  SOUTHERN  RAILWAY 
COMPANY  V.   RENFROE. 

Supreme  Court  of  Arkansas,  1907. 

[82  Arh.  145.] 

Wood,  J.  (after  stating  the  facts).  The  contract  of  shipment,  as 
evidenced  by  the  bill  of  lading,  was  entered  into  between  appellant 
and  appellee.  It  was  for  free  shipment  over  appellant's  line  and  con- 
necting carriers  from  Alma,  Ark.,  to  Kansas  City,  Mo.  Appellant 
having  accepted  the  berries  for  through  transportation,  it  was  its  duty 
to  furnish  cars  suitable  for  the  purpose.  Strawberries  were  perishable 
goods,  and  appellant  having  undertaken  to  transport  them  to  market, 
it  was  its  duty  to  furnish  cars  especially  adapted  to  the  preservation 
of  such  goods  during  the  time  required  for  their  transition  from  the 
place  of  shipment  to  the  place  of  destination  under  the  contract. 

"  If,"  says  Mr.  Hutchinson,  "the  goods  are  of  such  a  nature  as  to 
require  for  their  protection  some  other  kind  of  car  than  that  required 
for  ordinary  goods,  and  cars  adapted  to  the  necessity  are  known  and 
in  customary  use  by  carriers,  it  is  the  duty  of  the  carrier,  where  he  ac- 
cepts the  goods,  to  provide  such  cars  for  their  carriage.  Hutch.  Car. 
(3d  ed.)  §§  505,  508  ;  Beard  v.  111.  Cent.  Ry.  Co.,  79  la.  518  ;  Chicago 
&  A.  Rd.  Co.  V.  Davis,  159  111.  53 ;  St.  Louis,  I.  M.  «&;  S.  Ry.  Co.  v. 
Marshall,  74  Ark.  597. 

It  is  the  contention  of  appellant  that  it  discharged  its  duty  to  ap- 
pellees when  it  furnished  a  refrigerator  car,  and  that  the  duty  of  icing 
the  car,  under  the  evidence,  devolved  upon  the  American  Refrigerator 
Transit  Company,  the  owner  of  the  car.  The  contention  is  unsound, 
as  shown  in  New  York,  Philadelphia  &  Norfolk  R.  Co.  v.  Cromwell, 
49  L.  R.  A.  462.  That  was  a  case  that  involved  the  transportation  of 
strawberries.  The  court  said :  "  The  California  Fruit  Transportation 
Company,  for  a  consideration,  furnished  its  cars  to  the  plaintiff  in 
error  [the  railway  company].  These  cars  were  agencies  or  means 
employed  by  the  plaintiff  in  error  for  carrying  on  its  business  and  per- 
forming its  duty  to  the  public  as  a  common  carrier,  one  of  which  was 
to  provide  suitable  cars  for  the  safe  and  expeditious  carriage  and  pres- 
ervation of  the  freight  it  undertook  to  carry.  A  railway  company 
cannot  escape  responsibility  for  its  failure  to  provide  cars  reasonably 
fit  for  the  conveyance  of  the  particular  class  of  goods  it  undertakes  to 
carry  by  alleging  that  the  cars  used  for  the  purposes  of  its  own  transit 
were  the  property  of  another.  The  undertaking  of  the  plaintiff  in  error 
[railway  company]  was  to  properly  care  for  and  safely  carry  the  fruit 
of  the  defendant  in  error,  and  it  is  immaterial  that  the  cars  in  which 
it  was  carried  were  owned  by  the  California  Fruit  Transportation 
Company,  or  that  such  company  undertook  to  ice  said  cars  or  to  pay 
for  the  ice.     As  between  the  plaintiff  in  error  and  defendant  in  error, 


STATE   EX   REL   CRANDALL  V.   CHICAGO,   ETC.,  R.R.   CO.         293 

the  California  Fruit  Transportation  Company  and  its  employees  were 
the  agents  of  the  plaintiff  in  error.  So  far  as  the  defendant  in  error 
was  concerned,  the  plaintiff  in  error  was  under  the  same  obligations  to 
care  for  the  fruit  that  it  would  have  been  had  the  refrigerator  cars 
belonged  to  it." 

It  matters  not  in  the  case  at  bar  that  the  refrigerator  car  belonged 
to  the  American  Refrigerator  Transit  Company,  an  independent  con- 
tractor. Appellees  had  no  contract  with  it  to  furnish  cars  or  to  ice 
them  when  furnished.  Their  contract  was  with  appellant  to  furnish  suit- 
able cars ;  and'  the  evidence  was  ample  to  support  the  verdict,  that  ap- 
pellant not  only  undertook  to  furnish  the  car,  but  also  to  ice  the  same. 
Even  if  the  law  did  not  impose  this  upon  appellant  as  a  duty,  the  proof 
shows  that  it  undertook,  for  a  valuable  consideration,  to  furnish  refrig- 
eration as  well  as  the  car.  The  sum  of  $50  was  charged  and  paid  for 
that  service  to  appellant. 

The  evidence  was  sufficient  to  warrant  the  jury  in  finding  that  ap- 
pellant negligently  failed  to  perform  this  service,  that  it  failed  to  carry 
out  its  contract  to  ice  the  car  and  thus  to  furnish  a  suitable  car. 

True,  in  the  case  of  connecting  carriers  the  presumption  is  that  the 
delivering  carrier  caused  the  injury.  Kansas  City  S.  Ry.  Co.  v.  Em- 
bry,  76  Ark.  589 ;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Marshall,  supra  ; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Coolidge,  73  Ark.  114;  St.  Louis 
S.  W.  Ry.  Co.  V.  Birdwell,  72  Ark.  602.  But  this  presumption  only 
obtains  in  the  absence  of  proof  locating  the  negligent  carrier.  Here 
the  evidence  warranted  the  jury  in  finding  that  appellant  was  negligent 
in  failing  to  use  ordinary  care  to  see  that  the  car  was  kept  properly 
iced  at  Van  Buren  before  it  started  for  Kansas  City. 

Finding  no  error,  the  judgment  is  affirmed. 


;    STATE  ex  rel  CRANDALL  v.  CHICAGO,  BURLINGTON  & 
QUINCY  RAILROAD  COMPANY. 

Supreme  Court  of  Nebraska,  1904. 

[72  Neb.  542.1] 

The  record  shows  that  considerable  ill  feeling  exists  between  some  of 
the  members  of  the  Farmers'  Grain  &  Lumber  Company  and  Mr.  Cran- 
dall,  and  that  certain  charges  and  complaints  had  been  made  to  the 
railway  company  that  Crandall  had  been  shipping  grain  under  the  guise 
of  mill  products  by  covering  part  of  the  contents  of  the  car,  and  thereby 
obtaining  more  than  his  share  of  cars.  We  are  convinced,  however, 
that  these  charges  are  not  warranted  by  the  evidence,  and  that  Crandall 
was  honest  and  sincere  in  his  opinion  that  as  a  miller  he  was  entitled  to 
all  the  cars  the  railroad  could  furnish  for  his  use  in  shipping  all  kinds 

1  The  first  part  of  the  opinion  reviewing  the  facts  is  omitted.  — Ed. 


294         STATE   EX   REL   CRANDALL  V.  CHICAGO,   ETC.,   R.R.   CO. 

of  mill  products,  including  therein  "  cracked  corn,"  and  that  as  a  grain 
dealer  he  was  entitled  to  an  equal  number  of  cars  with  his  competitor, 
excluding  cars  used  for  **  cracked  corn,"  "  chop,"  etc.  We  are  further 
convinced  that  no  intention  on  the  part  of  the  respondent's  agents  or 
officers  to  discriminate  unfairly  against  Mr.  Crandall  has  been  shown, 
and  that  the}'  have  been  placed  in  the  difficult  position  of  trying  to  do 
business  with  two  active  and  jealous  competitors  in  such  a  manner  as  to 
remain  upon  good  terms  with  both,  a  task  almost  beyond  human  power. 

"  How  happy  coald  "  they  "  be  with  either, 
Were  t'other  dear  charmer  away  I  " 

The  brief  of  the  relator  is  largel}'  devoted  to  the  proposition  that  a 
common  carrier  of  goods  is  required  to  provide  facilities  for  and  to  re- 
ceive and  ship  goods  tendered  at  its  stations  on  payment  or  tender  of 
the  usual  tariff  rates  ;  that  it  has  no  right  to  discriminate  or  favor  one 
shipper  over  another  in  rates  or  facilities,  and  that  such  duties  of  com- 
mon carriers  are  enforceable  by  mandamus.  With  this  proposition  we 
agree.  Since  the  briefs  in  this  case  were  filed,  the  case  of  State  ex  rel 
McComb  V.  Chicago,  B.  &  Q.  Ry.  Co.,  99  N.  W.  309,  has  been  decided 
by  this  court.  That  decision  is  in  accord  with  the  principles  contended 
for  by  relator,  but  with  the  further  qualification  that,  when  the  carrier 
lias  furnished  itself  with  the  appliances  necessary  to  transport  the 
amount  of  freight  which  may,  in  the  usual  course  of  events,  be  reason- 
ably expected  to  be  offered  to  it  for  carriage,  taking  into  consideration 
the  fact  that  at  certain  seasons  more  cars  are  needed,  it  has  fulfilled  its 
dut}'  in  that  regard,  and  it  will  not  be  required  to  provide  for  such  a 
rush  of  grain  or  other  goods  for  transportation  as  ma}-  only  occur  in  any 
given  locality  temporarily,  or  at  long  intervals  of  time.  It  appears 
that  ordinarily  the  respondent  has  cars  enough  to  meet  the  usual  re- 
quirements of  shippers,  but  that,  owing  to  the  long  coal  strike  in  the 
East,  conditions  had  been  abnormal,  and  the  railroad  company  had  at 
this  time  been  unable  to  have  returned  to  its  line  a  large  number  of  its 
cars  which  had  been  sent  to  points  upon  other  railroads,  and  that  it  had 
found  it  necessary  to  impose  an  extra  charge  in  the  nature  of  a  per  diem. 
for  cars  which  were  retained  by  other  lines  for  more  than  thirty  days, 
with  the  purpose  of  procuring  an  expeditious  return  of  the  cars ;  that, 
owing  to  this  scarcity,  it  was  impossible  to  furnish  at  this  time  all  the 
cars  necessary  for  use,  not  only  by  the  relator,  but  by  all  other  grain 
shippers  along  its  lines  in  this  state.  Under  this  state  of  facts  the 
modifying  principle  above  quoted  applies,  and,  if  no  unjust  discrimina- 
tion appears,  no  shipper  has  the  right  to  complain  because  he  has  not 
been  able  to  obtain  carriage  for  all  the  goods  which  he  may  desire 
transported. 

We  are  of  the  opinion  that  no  failure  of  duty  or  unjust  discrimination 
has  been  shown  upon  the  part  of  respondent,  and  that  the  judgment  of 
the  district  court  should  be  affirmed. 


MAJESTIC   COAL  AND   COKE   CO.  V.   ILLINOIS   CENTRAL   11.K.   CO.      295 


MAJESTIC   COAL   AND  COKE  COMPANY  v.   ILLINOIS 
CENTRAL  RAILROAD   COMPANY. 

Circuit  Coubt  of  Appeals  of  the  United  States,  1908. 

[162  Fed.  810.] 

Kohlsaat,  Circuit  Judge.  This  cause  is  now  before  the  court  on 
demurrer  and  motion  to  dissolve  temporary  injunction.  Complainant 
filed  its  bill  to  restrain  defendant  from  including  certain  private  cars 
and  certain  so-called  "  foreign  fuel  cars"  in  estimating  the  distributive 
share  or  quota  of  complainant  in  and  to  defendant's  "  s^'stem  cars,"  so 
called.  From  the  bill  it  appears  that  heretofore  complainant  has  been 
awarded  its  pro  rata  number  of  ' '  system  cars  "  without  reference,  and 
in  addition  to  the  private  and  foreign  fuel  cars  emploj'ed  in  connection 
with  its  business.  It  is  alleged  in  the  bill  that  in  this  way  it  has  been 
able  to  work  its  mine  at  its  full  capacity',  whereb}'  it  could  produce 
coal  at  reduced  rates.  This  rate  manifestl}'  would  be  available  for  in- 
terstate shipments,  although  the  bill  alleges,  and  the  demurrer  admits, 
that  the  private  and  foreign  fuel  cars  were  engaged  solely  in  intrastate 
trade.  It  further  appears  from  the  bill  that  complainant  has  entered 
into  contracts  on  the  basis  of  the  old  allotment  of  cars,  which  it  cannot 
afford  to  carry  out  on  the  new  basis  of  distribution  of  system  cars. 

It  is  claimed  for  complainant  that,  inasmuch  as  the  private  and  for- 
eign fuel  cars  deal  only  with  intrastate  transactions,  the  transactions 
in  question  do  not  come  within  the  terms  or  spirit  of  the  interstate 
commerce  act.  It  is  the  plain  intent  of  the  act  that  railroad  com- 
panies shall  not  extend  an}'  advantage  to  an}'  shipper.  It  follows, 
therefore,  that  any  act  of  a  railroad  company  which  directly  or  in- 
directly results  in  the  extension  of  advantage  to  any  one  or  more 
shippers  over  other  shippers  dealing  with  that  road  in  interstate  com- 
merce is  forbidden  by  the  statute.  It  appears  from  the  bill  that  the 
defendant  is  engaged  in  such  commerce.  There  exists,  therefore,  this 
situation,  viz. :  The  railroad  is  giving  to  the  coal  company  facilities, 
in  intrastate  commerce,  it  may  be,  which  enable  the  latter  to  place  its 
coal  upon  the  market  for  interstate  shipment  at  a  less  price  than  that 
at  which  other  coal  mines  can  afford  to  sell  coal.  Of  course,  such  a 
situation  might  arise  from  other  causes,  as,  for  instance,  more  acces- 
sible strata  or  greater  quantities  of  coal  or  better  mining  facilities  or 
lower  wages.  These  advantages  might  be  lawful  in  themselves,  and 
not  at  all  within  the  statute,  and  would  be  proper  data  to  be  considered 
in  fixing  the  quota  of  cars.  The  law,  however,  deals  with  the  interstate 
carrier.  It  may  not  in  any  way  become  a  party  to  complainant's  unfair 
advantage  over  other  shippers  in  affording  greater  facilities  pro  rata  to 
one  shipper  than  to  another.  It  is  a  creature  of  the  law,  and  amend- 
able to  the  varying  provisions  thereof.     It  was  quite  within  the  power 


296        MICHIGAN   CENTRAL   RAILROAD   COMPANY   V.   SMITHSON. 

of  Congress  to  enact  that  a  railroad  shall  not  lend  its  great  advantages 
to  any  enterprise  which  in  any  way  seems  to  discriminate  in  favor  of 
or  against  any  person  dealing  with  it.  That  it  is  doing  so  in  this  case 
is  beyond  question. 

The  fact  that  the  new  rule  would  work  hardship  upon  complainant  or 
place  it  at  disadvantage  is  one  which  the  court  may  not  consider. 
Complainant's  claim  in  the  premises,  as  appears  from  the  bill,  comes 
within,  and  is  repugnant  to,  the  statute,  and  cannot  be  sustained.  This 
finding  is  in  accordance  with  the  decisions  in  U.  S.  ex  rel.  Pitcairn 
Coal  Company  v.  B.  &  O.  R.  R.  Co.  (C.  C),  154  Fed.  108,  and  Logan 
Coal  Co.  V.  Penn.  R.  R.  Co.  (C.  C),  154  Fed.  497,  and  by  the  decision 
of  the  Interstate  Commerce  Commission  Jul}'  11,  1907,  in  the  cases 
of  Railroad  Commission  of  Ohio  v.  Hocking  Valley  Ry.  Co.  and  Wheel- 
ing &  Lake  Erie  R.  R.  Co.,  12  Interst.  Com.  R.  398. 

Considerable  space  is  given  in  the  briefs  to  the  question  of  jurisdic- 
tion. In  view  of  what  has  been  said  above,  it  becomes  unnecessar}' 
to  pass  upon  that  question  further  than  to  say  that  the  demurrer  is 
sustained,  the  bill  dismissed  for  want  of  equity,  and  the  temporary  in- 
junction dissolved.  Mr.  H.  B.  Arnold,  counsel  for  the  interstate 
commission,  was  allowed  to,  and  did,  file  a  brief  herein. 


MICHIGAN  CENTRAL  RAILROAD  COMPANY  v.  SMITHSON. 
Supreme  Court  of  Michigan,  •  1881. 

[45  Mich.  212.1] 

CooLEY,  J.  The  primary  fact  that  must  rule  this  controversy  Is 
that  the  Michigan  Central  Railroad  Company  is  compelled  to  receive 
and  transport  over  its  road  all  the  varieties  of  freight  cars  which  are 
oflfered  to  it  for  the  purpose  and  which  are  upon  wheels  adapted  to  its 
gauge.  It  is  compelled  to  do  so  —  First,  because  the  necessities  of 
commerce  demand  it.  It  cannot  and  would  not  be  tolerated  that  cars 
loaded  at  New  York  for  San  Francisco,  or  at  Boston  for  Chicago, 
should  have  their  freight  transferred  from  one  car  to  another  whenever 
they  passed  upon  another  road.  Time  would  be  lost,  expense  in- 
creased, injuries  to  freight  made  more  numerous,  and  no  correspond- 
ing advantage  accrue  to  any  one.  It  is  compelled  to  do  so,  second, 
by  its  own  interest.  To  attempt  to  stop  every  car  oflfered  to  it  at  its 
own  termini,  that  the  freight  might  be  transferred  to  its  own  vehicles, 
would  be  to  drive  away  from  its  line  a  large  portion  of  its  traffic,  and 
compel  it  to  rely  upon  a  local  business  for  which  it  must  increase  its 
charges  to  make  up  if  possible  for  what  it  would  lose.  But  thirds  the 
Statute  itself  requires  it.  It  is  provided  by  General  Laws  1873,  p.  99, 
that  '*  every  corporation  owning  a  road  in  use,  shall,  at  reasonable 

1  Only  the  dictom  for  which  this  case  is  chiefly  known  is  printed.  —  £o. 


ATLANTIC   COAST   LINE   R.K.   CO.   V.   N.   C.   CORP.   COMM.         297 

times  and  for  a  reasonable  compensation,  draw  over  the  same  the 
merchandise  and  cars  of  any  other  corporation."  The  necessities  of 
commerce  require  this  with  such  imperative  force  that  there  could 
scarcely  be  a  more  flagrant  breach  of  corporate  duty  than  would  be  a 
refusal  to  obey  this  law ;  and  the  interference  of  the  State  to  punish 
could  hardly  fail  to  be  speedy  and  effectual. 


ATLANTIC  COAST  LINE  RAILROAD  COMPANY  v.  NORTH 
CAROLINA   CORPORATION   COMMISSION. 

Supreme  Court  of  the  United  States,  1907. 

[206  U.  S.  Li] 

2.  The  order  was  arbitrary  and  unreasonable,  because  when  properly 
considered  it  imposed  upon  the  Coast  Line  a  duty  foreign  to  its  obliga- 
tion to  furnish  adequate  facilities  for  those  travelling  upon  its  road. 

This  rests  upon  the  assumption  that  as  the  order  was  based  not  upon 
the  neglect  of  the  Coast  Line  to  afford  facilities  for  travel  over  its  own 
road,  but  because  of  the  failure  to  furnish  facilities  to  those  travelling 
on  the  Coast  Line  who  desired  also  to  connect  with  and  travel  on  the 
Southern  road,  therefore  the  order  was  in  no  just  sense  a  regulation  of 
the  business  of  the  Coast  Line.  This  reduces  itself  to  the  contention 
that,  although  the  governmental  power  to  regulate  exists  in  the  interest 
of  the  public,  3'et  it  does  not  extend  to  securing  to  the  public  reason- 
able facilities  for  making  connection  between  different  carriers.  But 
the  proposition  destroys  itself,  since  atone  and  the  same  time  it  admits 
the  plenary  power  to  regulate  and  yet  virtually  denies  the  efficiency  of 
that  authority.  That  power,  as  we  have  seen,  takes  its  origin  from  the 
quasi  public  nature  of  the  business  in  which  the  carrier  is  engaged,  and 
embraces  that  business  in  its  entirety,  which  of  course  includes  the  duty 
to  require  carriers  to  make  reasonable  connections  with  other  roads,  so 
as  to  promote  the  convenience  of  the  travelling  public.  In  considering 
the  facts  found  below  as  to  the  connection  in  question,  that  is,  the  pop- 
ulation contained  in  the  large  territory'  whose  convenience  was  subserved 
by  the  connection,  and  the  admission  of  the  railroad  as  to  the  impor- 
tance of  tlie  connection,  we  conclude  that  the  order  in  question,  consid- 
ered from  the  point  of  view  of  the  requirements  of  the  public  interest, 
was  one  coming  clearly  within  the  scope  of  the  power  to  enforce  just 
and  reasonable  regulations. 

1  In  hi8  opinion,  Mr.  Justice  White  reduces  the  objections  to  the  order  of  the  com- 
mission directing  the  roads  to  make  its  time-table  fit  in  with  that  of  a  connecting  road 
to  several  italicized  propositions  which  he  then  proceeds  to  refute.  Only  one  of  these 
is  printed  here.  —  Ed. 


298  BALLENTINE   V.   NORTH  MISSOURI   RAILROAD  CO. 


BALLENTINE  v.  NORTH  MISSOURI  RAILROAD   CO. 
Supreme  Court  of  Missouri,  1886. 

[40  Mo.  491.1] 

Fagg,  J.,  delivered  the  opinion  of  the  court. 

The  law  defining  and  regulating  the  duties  of  railroad  companies 
as  common  carriers,  is  so  well  settled  now  as  to  admit  of  little  doubt 
or  controversy.  As  preliminary,  however,  to  the  determination  of  the 
questions  involved  in  this  case,  it  may  be  stated  that  the  laws  of  the 
State  require  each  railroad  corporation  to  "  furnish  sufficient  accommo- 
dations for  the  transportation  of  all  such  passengers  and  property  as 
shall,  within  a  reasonable  time  previous  thereto,  be  offered  for  trans- 
portation," &c.  R.  C.  1855,  p.  435,  §  44.  The  sufficiency  of  such 
accommodations  must  be  determined  b}'  the  amount  of  freight  and  the 
number  of  passengers  ordinarily  transported  on  any  given  line  of  road. 
The  duty  of  a  company  to  the  public,  in  this  respect,  is  not  peculiar  to 
anj'  season  of  the  year,  or  to  any  particular  emergenc}-  that  ma}-  pos- 
sibly arise  in  the  course  of  its  business.  The  amount  of  business 
ordinarily  done  by  the  road  is  the  onh*  proper  measure  of  its  obligation 
to  furnish  transportation.  If  b}'  reason  of  a  sudden  and  unusual  de- 
mand for  stock  or  produce  in  the  market,  or  from  any  other  cause, 
there  should  be  an  unexpected  influx  of  business  to  the  road,  this  obli- 
gatton  will  be  fully  met  by  shipping  such  stock  or  produce  in  the  order 
and  priority  of  time  in  which  it  is  offered.  Galena  &  Chicago  R.  R. 
Co.  V.  Rae  et  al,  18  III.  488  ;  Weibert  v.  N.  Y.  &  Erie  R.  R.  Co., 
19  Barb.  36.  Any  other  construction  of  the  statute  would  be.unjust  to 
the  railroad  companies  without  benefiting  the  public. 

It  seems  to  have  been  the  theory  upon  which  the  petition  proceeded 
in  this  case,  that  it  was  the  duty  of  the  defendant  to  have  shipped  the 
live  stock  in  the  order  of  time  in  which  it  was  offered  with  reference  to 
the  entire  line  of  its  road,  and  not  to  any  particular  station.  This  is 
altogether  unreasonable,  and  in  its  practical  operation  would  work  great 
hardships  upon  all  companies.  Its  duty  in  this  respect,  then,  must  be 
understood  in  reference  to  each  particular  station,  and  not  to  the  opera- 
tion of  the  road  as  a  whole. 

Whilst  it  may  be  difficult  to  lay  down  any  general  rule  upon  this 
subject  sufficiently  accurate  in  its  terms  to  cover  all  cases  that  mav 
possibly  occur,  still  we  think  it  can  be  approximated  by  saying  that  its 
means  of  transportation  must  be  so  distributed  at  the  various  stations 

1  This  caae  ia  abridged.  —  Ed. 


AYRES   V.   CHICAGO   AND   NORTHWESTERN   RAILWAY.  299 

for  receiving  passengers  and  freight  along  the  entire  Hne  of  its  road, 
as  to  afford  a  reasonable  amount  of  accommodation  for  all.  Or,  to 
state  it  differently,  no  one  station  should  be  furnished  with  means  of 
transportation  to  the  prejudice  of  another,  but  a  distribution  should  be 
made  among  all  in  something  like  a  just  proportion  to  the  amount  of 
business  ordinarily  done  at  each.  Its  dut}'  is  to  receive  all  freight  that 
ma}'  be  offered,  and  within  a  reasonable  time,  and  in  the  order  in  which 
it  is  offered,  to  transport  the  same  to  any  other  point  on  the  line  of  its 
road  that  ma}-  be  designated  by  the  owner  or  other  person  having  charge 
of  it.  This  duty  to  the  public  must  be  performed  in  good  faith,  and 
without  partialit}'  or  favor  to  any  one.  Every  individual  in  the  com- 
munit}',  h\  complying  with  the  prescribed  rules  and  regulations  of  the 
compan}',  has  an  equal  right  to  demand  the  performance  of  this  duty, 
and  the  law  does  not  excuse  a  discrimination  in  this  respect  any  more 
than  it  does  a  discrimination  in  favor  of  an}-  particular  station  on  tlie 
line  of  its  road.  In  every  proceeding,  therefore,  against  a  railroad 
company  for  neglect  of  its  dut}',  either  in  receiving  or  shipping  freight 
in  the  order  in  which  it  is  offered,  the  good  faith  of  its  conduct  in  the 
matter  complained  of  is  a  proper  subject  of  inquiry,  and  if  found  to  be 
wanting,  should  receive  the  severest  condemnation  and  censure  from 
the  courts  of  the  country.^ 


AYRES  V.   CHICAGO  AND   NORTHWESTERN  RAILWAY. 
Supreme  Court  of  Wisconsin,  1888. 

[71    Wis.  372:  37  N.    W.  432.] 

The  amended  complaint  is  to  the  effect  that  the  defendant,  being  a 
common  carrier  engaged  in  the  transportation  of  live  stock,  and  accus- 
tomed to  furnish  cars  for  all  live  stock  offered,  was  notified  by  the 
plaintiffs,  on  or  about  October  13,  1882,  to  have  four  such  cars  for  the 
transportation  of  cattle,  hogs,  and  sheep  at  its  station  La  Valle,  and 
three  at  its  station  Reedsburg,  ready  for  loading  on  Tuesday  morning, 
October  17,  1882,  for  transportation  to  Chicago ;  that  the  defendant 
neglected  and  refused  to  provide  such  cars  at  either  of  said  stations  for 
four  days,  notwithstanding  it  was  able  and  might  reasonably  have  done 

1  Helliwell  v.  Grand  Trunk,  17  Fed.  68;  Chicago  Co.  v.  Fisher,  31  III.  App.  36; 
Deming  v.  Grand  Trunk,  48  N.  H.  155;  Tennessee  R.  R.  v.  Nelson,  1  Cold.  272; 
R.  R.  i;.  Nicholson,  61  Tex.  491.  —  Ed. 


300  AYRES   V.   CHICAGO   &  NORTHWESTERN  RAILWAY. 

SO ;  and  also  neglected  and  refused  to  carry  said  stock  to  Chicago  with 
reasonable  diligence,  so  that  they  arrived  there  four  days  later  than 
they  otherwise  would  have  done  ;  whereby  the  plaintiffs  suffered  loss 
and  damage,  by  decrease  in  price  and  otherwise,  81,700.^ 

Cassoday,  J.  We  are  forced  to  the  conclusion  that  at  the  time 
the  plaintiffs  applied  for  the  cars  the  defendant  was  engaged  in  the 
business  of  transporting  live  stock  over  its  roads,  including  the  line  in 
question,  and  that  it  was  accustomed  to  furnish  suitable  cars  therefor, 
upon  reasonable  notice,  whenever  it  was  within  its  power  to  do  so ; 
and  that  it  held  itself  out  to  the  public  generally  as  such  carrier  for  hire 
upon  such  terms  and  conditions  as  were  prescribed  in  the  written  con- 
tracts mentioned.  These  things,  in  our  judgment,  made  the  defendant 
a  common  carrier  of  live  stock,  with  such  restrictions  and  limitations  of 
its  common-law  duties  and  liabilities  as  arose  from  the  instincts,  habits, 
propensities,  wants,  necessities,  vices,  or  locomotion  of  such  animals, 
under  the  contracts  of  carriage.  This  proposition  is  fairlj^  deducible 
from  what  was  said  in  Richardson  v.  C.  &  N.  W.  R.  Co.,  61  Wis.  601, 
and  is  supported  b\'  the  logic  of  numerous  cases.  North  Penn.  R.  Co. 
V.  Commercial  Bank,  123  U.  S.  727  ;  Moulton  v.  St.  P.,  M.  &  M.  R.  Co., 
31  Minn.  85,  12  Am.  &  Eng.  R.  Cas.  13 ;  Lindsley  v.  C,  M.  &  St.  P. 
R.  Co.,  36  Minn.  539  ;  p:vans  v.  F.R.  Co.,  Ill  Mass.  142 ;  Kimball  v. 
R.  &  B.  R.  Co.,  26  Vt.  247,  62  Am.  Dec.  567 ;  Rixford  t.  Smith,  52 
N.  H.  355  ;  Clarke  v.  R.  &  S.  R.  Co.,  14  N.  Y.  570,  67  Am.  Dec.  205  ; 
South  &  N.  A.  R.  Co.  V.  Henlein,  52  Ala.  606  ;  Baker  v.  L.  &  N.  R. 
Co.,  10  Lea,  304,  16  Am.  &  Eng.  R.  Cas.  149  ;  Philadelphia  W.  &  B. 
R.  Co.  V.  Lehman,  56  Md.  209  ;  McFadden  v.  M.  P.  R.  Co.,  92  Mo. 
343  ;  3  Am.  &  Eng.  C3'clop.  Law,  pp.  1-10,  and  cases  there  cited. 
This  is  in  harmony  with  the  statement  of  Parke,  B.,  in  the  case  cited 
by  counsel  for  the  defendant,  that  "  at  common  law  a  carrier  is  not 
bound  to  carr}'  for  every  person  tendering  goods  of  any  description, 
but  his  obligation  is  to  carry  according  to  his  public  profession." 
Johnson  v.  Midland  R.  Co.,  4  Exch.  372.  Being  a  common  carrier  of 
live  stock  for  hire,  with  the  restrictions  and  limitations  named,  and 
•  holding  itself  out  to  the  public  as  such,  the  defendant  is  bound  to  fur- 
nish suitable  cars  for  such  stock,  upon  reasonable  notice,  whenever  it 
can  do  so  with  reasonable  diligence  without  jeopardizing  its  other  busi- 
ness as  such  common  carrier.  Texas  &  P.  R.  Co.  ru  Nicholson,  61 
Tex.  491  ;  Chicago  &  A.  R.  Co.  v.  Erickson,  91  111.  613;  Ballentine  v. 
N.  M.  R.  Co.,  40  Mo.  491  ;  Guinn  v.  W.,  St.  L.  &  P.  R.  Co.,  20  Mo. 
App.  453. 

Whether  the  defendant  could  with  such  diligence  so  furnish  upon  the 
notice  given,  was  necessarily  a  question  of  fact  to  be  determined.  The 
plaintiffs,  as  such  shippers,  had  the  right  to  command  the  defendant  to 
furnish  su(rh  cars.  But  they  had  no  right  to  insist  upon  or  expect  com- 
pliance, except  upon  giving  reasonable  notice  of  the  time  when  they 
would  be  required.  To  he  reasonable,  such  notice  must  have  been  suf- 
^  The  Btatement  of  facts  and  part  of  the  opinion  are  omitted.  —  £d. 


AYRES   V.   CHICAGO   &  NORTHWESTERN   RAILWAY.  301 

ficient  to  enable  the  defendant,  with  reasonable  diligence  under  the  cir- 
cumstances then  existing,  to  furnish  the  cars  without  interfering  with 
previous  orders  from  other  shippers  at  the  same  station,  or  jeopardizing 
its  business  on  other  portions  of  its  road.  It  must  be  remembered  that 
the  defendant  has  many  lines  of  railroad  scattered  through  several  dif- 
ferent States.  Along  each  and  all  of  these  different  lines  it  has  stations 
of  more  or  less  importance.  The  companj'  owes  the  same  duty  to 
shippers  at  any^one  station  as  it  does  to  the  shippers  at  any. other 
station  of  the  same  business  importance.  The  rights  of  all  shippers 
applying  for  such  cars  under  the  same  circumstances  are  necessarily 
equal.  No  one  station,  much  less  any  one  shipper,  has  the  right  to 
command  the  entire  resources  of  the  company'  to  the  exclusion  or  pre- 
judice of  other  stations  and  other  shippers.  Most  of  such  suitable  cars 
must  necessarily  be  scattered  along  and  upon  such  different  lines  of 
railroad,  loaded  or  unloaded.  Many  will  necessarily'  be  at  the  larger 
centers  of  trade.  The  conditions  of  the  market  are  not  alwajs  the 
same,  but  are  liable  to  fluctuations,  and  may  be  such  as  to  create  a 
great  demand  for  such  cars  upon  one  or  more  of  such  lines,  and  very 
little  upon  others.  Such  cars  should  be  distributed  along  the  different 
lines  of  road,  and  the  several  stations  on  each,  as  near  as  maj*  be  in 
proportion  to  the  ordinary  business  requirements  at  the  time,  in  order 
that  shipments  ma}'  be  made  witli  reasonable  celerity.  The  require- 
ment of  such  fair  and  general  distribution  and  uniform  vigilance  is  not 
only  mutually  beneficial  to  producers,  shippers,  carriers,  arid  purchasers, 
but  of  business  and  trade  generally.  It  is  the  extent  of  such  business 
ordinarily  done  on  a  particular  line,  or  at  a  particular  station,  which 
properly  measures  the  carrier's  obligation  to  furnish  such  transporta- 
tion. But  it  is  not  the  dut}-  of  such  carrier  to  discriminate  in  favor  of 
the  business  of  one  station  to  the  prejudice  and  injury  of  the  business 
of  another  station  of  the  same  importance.  These  views  are  in  harmony 
with  the  adjudications  last  cited. 

The  important  question  is  whether  the  burden  was  upon  the  plaintiffs 
to  prove  that  the  defendant  might,  with  such  reasonable  diligence  and 
without  thus  jeopardizing  its  other  business,  have  furnished  such  cars 
at  the  time  ordered  and  upon  the  notice  given  ;  or  whether  such  burden 
was  upon  the  defendant  to  prove  its  inability  to  do  so.  We  find  no 
direct  adjudication  upon  the  question.  Ordinarily,  a  plaintiff  alleging 
a  fact  has  the  burden  of  proving  it.  This  rule  has  been  applied  by  this 
court,  even  where  the  complaint  alleges  a  negative,  if  it  is  susceptible 
of  proof  by  the  plaintiff.  Hepler  v.  State,  58  Wis.  46.  But  it  has  been 
held  otherwise  where  the  only  proof  is  peculiarl}'  within  the  control  of 
the  defendant.  Mecklem  v.  Blake,  16  Wis.  102;  Beckmann  v.  Henn, 
17  Wis.  412;  Noonan  v.  Ilsley,  21  Wis.  144;  Great  Western  R.  Co. 
V.  Bacon,  30  111.  352  ;  Brown  v.  Brown,  30  La.  Ann.  511.  Here  it  may 
have  been  possible  for  the  plaintiffs  to  have  proved  that  there  were  at 
the  times  and  stations  named,  or  in  the  vicinity,  empty  cars,  or  cars 
which  had  reached  their  destination  and  might  have  been  emptied  with 


302  PEOPLE   V.   CHICAGO   AND   ALTON   RAILROAD. 

reasonable  diligence,  but  they  could  not  know  or  prove,  except  by 
agents  of  the  defendant,  that  any  of  such  cars  were  not  subject  to  priot 
orders  or  superior  obligations.  The  ability  of  the  defendant  to  so  fur- 
nish with  ordinary  diligence  upon  the  notice  given,  upon  the  principles 
stated  was,  as  we  think,  peculiarly  within  the  knowledge  of  the  defend- 
ant and  its  agents,  and  hence  the  burden  was  upon  it  to  prove  its  in- 
ability to  do  so.  Where  a  shipper  applies  to  the  proper  agency  of  a 
railroad  company  engaged  in  the  business  of  such  common  carrier  of 
live  stock  for  such  cars  to  be  furnished  at  a  time  and  station  named, 
it  becomes  the  duty  of  the  companj'  to  inform  the  shipper  within  a 
reasonable  time,  if  practicable,  whether  it  is  unable  to  so  furnish,  and 
if  it  fails  to  give  such  notice,  and  has  induced  the  shipper  to  believe 
that  the  cars  will  be  in  readiness  at  the  time  and  place  named,  and  the 
shipper,  relying  upon  such  conduct  of  the  carrier,  is  present  with  his 
live  stock  at  the  time  and  place  named,  and  finds  no  cars,  there  would 
seem  to  be  no  good  reason  why  the  company  should  not  respond  in 
damages.  Of  course  these  observations  do  not  involve  the  question 
whether  a  railroad  company  may  not  refrain  from  engaging  in  such 
business  as  a  common  carrier ;  nor  whether,  having  so  engaged,  it  may 
not  discontinue  the  same. 

The  court  very  properly'  charged  the  jur}',  in  effect,  that  if  all  the 
cars  had  been  furnished  on  time,  as  the  two  were,  it  was  reasonable  to 
presume,  in  the  absence  of  any  proof  of  actionable  negligence  on  the 
part  of  the  defendant,  that  they  would  have  reached  Chicago  at  t.h€ 
same  time  the  two  did  —  to  wit,  Thursday,  October  19,  1882,  a.  m., 
whereas  they  did  not  arrive  until  Friday  evening.  This  was  In  time, 
however,  for  the  market  in  Chicago  on  Saturday,  October  21,  1882. 
This  necessarily  limited  the  recovery  to  the  expense  of  keeping,  the 
shrinkage,  and  depreciation  in  value  from  Thursday  until  Saturday. 
Chicago  &  A.  R.  Co.  v.  Erickson,  91  111.  613.  The  trial  court,  how- 
ever, refused  to  so  limit  the  recover}-,  but  left  the  jury  at  liberty  to  in- 
clude such  damages  down  to  Monday,  October  23,  1882.  For  this 
manifest  errror,  and  because  there  seems  to  have  been  a  mistrial  in 
some  other  respects,  the  judgment  of  the  circuit  court  is  reversed,  and 
the  cause  is  remanded  for  a  new  trial. 

By  the  Court.  —  Ordered  accordingly. 


PEOPLE  V.    CHICAGO  AND  ALTON   RAILKOAD- 
•  Supreme  Court  of  Ilunois,  1889. 

[ISO///.  175:  22  N.E.  857.] 

Bailet,  J.  This  was  a  petition  for  a  jnandamus^  brought  by  the 
people  of  the  state  of  Illinois,  on  the  relation  of  the  attorney-general, 
against  the  Chicago  &,  Alton  Railroad  Company,  to  compel  said  com- 
pany to  establish  and  maintain  a  station  for  the  receipt  and  discharge 
of  passengers  and  freight  at  Upper  Alton,  in  Madison  County.    .  . 


PEOPLE   V.   CHICAGO   AND   ALTON   RAILROAD.  303 

There  is,  so  far  as  we  have  been  able  to  discover,  no  provision  of 
any  statute  which  can  be  appealed  to  in  support  of  the  prayer  of  the 
petition.  Neither  in  the  defendant's  charter  nor  in  any  other  act  of 
the  general  assembly  does  there  seem  to  be  any  attempt  to  prescribe 
the  rules  by  which  the  defendant  is  to  be  governed  in  the  location  of 
its  freight  and  passenger  stations,  or  to  confer  upon  the  Circuit  Court 
the  power  to  interpose  and  direct  as  to  their  location.  It  is  plain 
that  the  act  of  1877,  the  only  one  to  which  we  are  referred  in  this 
connection,  can  have  no  application.  That  act  provides  "that  all 
railroad  companies  in  this  state,  carrying  passengers  or  freight,  shall, 
and  they  are  hereby  required  to,  build  aud  maintain  depots  for  the 
comfort  of  passengers,  and  for  the  protection  of  shippers  of  freight, 
where  such  railroad  companies  are  in  the  practice  of  receiving  and 
delivering  passengers  and  freight,  at  all  towns  and  villages  on  the 
line  of  their  roads  having  a  population  of  five  hundred  or  more." 
2  Starr  &,  C.  St.  1924.  While  it  is  true  that  Upper  Alton  is  a  town 
having  a  population  of  more  than  500,  it  affirmatively  appears  that 
it  is  not  a  place  where  the  defendant  has  been  in  the  practice  of  re- 
ceiving and  delivering  passengers  and  freight,  and  so  is  not  within 
the  provisions  of  said  act.  The  petition  seeks  to  have  the  defendant 
compelled  to  establish  a  station  where  none  has  heretofore  existed, 
while  the  statute  merely  requires  the  erection  of  suitable  depot 
buildings  at  places  where  the  railway  company  has  already  located  its 
stations,  and  is  in  the  practice  of  receiving  and  discharging  passen- 
gers and  freight.  In  point  of  fact,  the  attorney-general,  in  his  argu- 
ment upon  the  rehearing,  admits  that  there  is  no  statute  upon  which 
his  prayer  for  a  mandamus  can  be  based;  the  position  now  taken  by 
him  being  that  upon  the  facts  alleged  in  the  petition  and  admitted 
by  the  demurrer,  the  legal  duty  on  the  part  of  the  defendant  to 
establish  a  freight  and  passenger  station  on  its  line  of  railway  in  the 
town  of  Upper  Alton  arises  by  virtue  of  the  principles  of  the  common 
law. 

It  is  undoubtedly  the  rule  that  railway  companies,  in  the  absence  of 
statutory  provisions  limiting  and  restricting  their  powers,  are  vested 
with  a  very  broad  discretion  in  the  matter  of  locating,  constructing, 
and  operating  their  railways,  and  of  locating  and  maintaining  their 
freight  and  passenger  stations.  This  discretion,  however,  is  not 
absolute,  but  is  subject  to  the  condition  that  it  must  be  exercised 
in  good  faith,  and  with  a  due  regard  to  the  necessities  and  conven- 
ience of  the  public.  Railway  companies,  though  private  corporations, 
are  engaged  in  a  business  in  which  the  public  have  an  interest,  and 
in  which  such  companies  are  public  servants,  and  amenable  as  such. 
This  doctrine  has  been  repeatedly  announced  by  this  and  other 
courts.  Thus,  in  Marsh  v.  Railroad  Co.,  64  111.  414,  which  was  a 
bill  for  the  specific  performance  of  a  contract  by  which  the  railway 
company  agreed  to  locate  its  passenger  and  freight  depots  at  a  par- 
ticular point  in  a  certain  town,  and  at  no  other  point  in  said  town, 


304  PEOPLE   V.   CHICAGO   AND   ALTON   RAILROAD. 

we  said:  "  This  is  not  a  case  which  concerns  merely  the  private  inter- 
ests of  two  suitors.  It  is  a  matter  where  the  public  interest  is  in- 
volved. Railroad  companies  are  incorporated  by  authority  of  law, 
not  for  the  promotion  of  mere  private  ends,  but  in  view  of  the  public 
good  they  subserve.  It  is  the  circumstance  of  public  use  which 
justifies  the  exercise  on  their  behalf  of  the  right  of  eminent  domain 
in  the  taking  of  private  property  for  the  purpose  of  their  construction. 
They  have  come  to  be  almost  a  public  necessity;  the  general  welfare 
being  largely  dependent  upon  these  modes  of  intercommunication, 
and  the  manner  of  carrying  on  their  operations."  In  the  same  case, 
in  holding  that  the  contract  there  in  question  ought  not  to  be  specifi- 
cally enforced,  we  further  said:  "Railroad  companies,  in  order  to 
fulfil  one  of  the  ends  of  their  creation,  — the  promotion  of  the  public 
welfare,  — should  be  left  free  to  establish  and  re-establish  their  depots 
wheresoever  the  accommodation  of  the  wants  of  the  public  may 
require." 

In  Railway  Co.  v.  People,  120  111.  200,  which  was  a  petition  for  a 
mandamus  to  compel  the  railway  company  to  repair,  generally,  a 
certain  portion  of  its  road,  and  to  increase  its  passenger  trains 
thereon,  we  said:  "There  can  be  no  doubt  of  the  duty  of  a  railway 
company  to  keep  its  road  in  a  reasonable  state  of  repair,  and  in  a  safe 
condition.  Nor  is  there  any  doubt  of  its  duty  to  so  operate  it  as  to 
afford  adequate  facilities  for  the  transaction  of  such  business  as  may 
be  offered  it,  or  at  least  reasonably  be  expected.  .  .  .  The  company, 
however,  is  given,  as  it  should  be,  a  very  large  discretion  in  deter- 
mining all  questions  relating  to  the  equipment  and  operation  of  its 
road;  hence  courts,  as  a  general  rule,  will  not  interfere  with  the 
management  of  railways  in  these  respects,  except  where  the  act  sought 
to  be  enforced  is  specific,  and  the  right  to  its  performance  in  the 
manner  proposed  is  clear  and  undoubted." 

It  is  in  recognition  of  the  paramount  duty  of  railway  companies  to 
establish  and  maintain  their  depots  at  such  points,  and  in  such  man- 
ner, as  to  subserve  the  public  necessities  and  convenience  that  it  has 
been  held  by  all  the  courts,  with  very  few  exceptions,  that  contracts 
materially  limiting  their  power  to  locate  and  relocate  their  depots  are 
against  public  policy,  and  therefore  void.  Railroad  Co.  v.  Mathers, 
71  111.  592;  Railroad  Co.  v.  Mathers,  104  111.  257;  Bestor  v.  Wathen, 
60  111.  138 ;  Linder  v.  Carpenter,  62  111,  309 ;  Railroad  Co.  v.  Ryan, 
11  Kas.  602;  Railroad  Co.  v.  Seely,  45  Mo.  212;  Holladay  v.  Patter- 
son, 5  Or.  177;  Tayl.  Corp.  §  162,  and  authorities  cited. 

We  have  now  to  consider  whether  in  the  light  of  the  principles 
above  laid  down,  a  right  to  the  relief  prayed  for  is  sufficiently  shown 
by  the  petition.  There  can  be  no  doubt  that  the  act  sought  to  be 
enforced  (the  establishment  and  maintenance  of  a  freight  and  passen- 
ger station  on  the  defendant's  line  of  railway  at  a  convenient  point 
within  the  town  of  Upper  Alton)  is  suflSciently  specific  to  be  enforced 
by  mandamus;  and  it  only  remains  to  be  seen  whether  the  right  to 


PEOPLE  V.   CHICAGO  AND  ALTON  RAILROAD.        305 

have  its  performance  enforced  is  shown  to  be  clear  and  undoubted. 
It  should  be  observed  that  there  is  no  controversy  as  to  the  facts ;  the 
allegations  of  the  petition  being,  for  all  the  purposes  of  this  appeal, 
conclusively  admitted  by  the  demurrer. 

The  petition  undertakes  to  show  the  public  importance  and  neces- 
sity of  the  station  asked  for  in  two  ways;  First,  by  alleging  the 
facts  and  circumstances  which  tend  to  prove  it;  and,  secondly,  by 
directly  averring  it.  It  cannot  be  doubted,  we  think,  that  the  facts 
alleged  make  out  a  clear  and  strong  case  of  public  necessity.  They 
show  that  Upper  Alton  is  a  town  of  over  1,800  inhabitants,  situated 
on  the  line  of  the  defendant's  railway  about  midway  between  two 
other  stations  seven  miles  apart.  The  residents  of  the  town  and 
vicinity  are  shown  to  be  possessed  of  at  least  the  ordinary  inclination 
to  travel  by  railway,  and  it  is  averred  that  many  of  them  have 
occasion  and  desire  to  travel  by  the  defendant's  railway  between 
Upper  Alton  and  other  points  on  the  line  of  said  railway.  Various 
manufacturing  and  other  business  enterprises  are  shown  to  be  carried 
on  within  the  town,  creating  a  necessity  for  the  use  of  said  railway 
for  the  transportation  of  manufactured  articles,  merchandise,  and  other 
freights.  To  avail  themselves  of  transportation  upon  trains  which 
pass  by  their  doors,  the  inhabitants  of  Upper  Alton  are  compelled  to 
go  and  transport  their  freights  by  other  conveyances  to  a  neighboring 
town  about  three  and  one-half  miles  away.  Then,  as  we  have  already 
said,  the  petition  directly  avers,  and  the  demurrer  admits,  that  the 
accommodation  of  the  public  living  in  and  near  said  town  requires, 
and  long  has  required,  the  establishment  of  a  passenger  and  freight 
depot  on  the  line  of  its  road  within  said  town.  Unless,  then,  there 
is  some  explanation  for  the  course  pursued  by  the  defendant  which 
the  record  does  not  give,  we  cannot  escape  the  conviction  that  its 
conduct  in  the  premises  exhibits  an  entire  want  of  good  faith  in  its 
efforts  to  perform  its  public  functions  as  a  common  carrier,  and  an 
unwarrantable  disregard  of  the  public  interests  and  necessities.  It 
cannot  be  admitted  that  the  discretion  vested  in  the  defendant  in  the 
matter  of  establishing  and  maintaining  its  freight  and  passenger  sta- 
tions extends  so  far  as  to  justify  such  manifest  and  admitted  disre- 
gard of  its  duties  to  the  public. 

We  are  of  the  opinion  that  the  petition  shows  a  clear  and  undoubted 
right  on  the  part  of  the  public  to  the  establishment  and  maintenance 
of  a  freight  and  passenger  station  on  the  line  of  the  defendant's  rail- 
way in  the  town  of  Upper  Alton,  and  it  therefore  follows  that  the 
demurrer  to  the  petition  should  have  been  overruled. 


20 


306  MOBILE   &  OHIO  RAILROAD   V.   PEOPLE. 

MOBILE   &   OHIO   RAILROAD   v.    PEOPLE. 
Supreme  Court  of  Illinois,  1890. 

[132  ///.  559  :  24  N.  E.  643.] 

ScHOLFiELD,  J.^  Railway  stations  for  the  receipt  and  discharge  of 
passengers  and  freight  are  for  the  mutual  profit  and  convenience  of 
the  company  and  the  public.  Their  location  at  points  most  desirable 
for  the  convenience  of  travel  and  business  is  alike  indispensable  to 
the  etHcient  operation  of  the  road  and  the  enjoyment  of  it  as  a  high- 
way by  the  public.  Necessarily,  therefore,  the  company  cannot  be 
compelled,  on  the  one  hand,  to  locate  stations  at  points  where  the 
cost  of  maintaining  them  will  exceed  the  profits  resulting  therefrom 
to  the  company,  nor  allowed,  on  the  other  hand,  to  locate  them  so  far 
apart  as  to  practically  deny  to  communities  on  the  line  of  the  road 
reasonable  access  to  its  use.  The  duty  to  maintain  or  continue  sta- 
tions must,  manifestly,  rest  upon  the  same  principle,  and  a  company 
cannot,  therefore,  be  compelled  to  maintain  or  continue  a  station  at  a 
point  where  the  welfare  of  the  company  and  the  country  in  general 
require  that  it  should  be  changed  to  some  other  point.  And  so  we 
have  held  that  a  railway  company  cannot  bind  itself  by  contract 
with  individuals  to  locate  and  maintain  stations  at  particular  points, 
or  to  not  locate  and  maintain  them  at  other  points.  Bestor  v. 
Wathen,  60  111.  138;  Linder  v.  Carpenter,  62  111.  309;  Marsh  v. 
Railroad  Co.,  64  111.  414;  Railroad  Co.  v.  Mathers,  71  111.  592;  Same 
Case  again  in  104  111.  257;  Snell  v.  Pells,  113  111.  145.  The  power 
of  election  in  the  location  of  the  line  of  the  railway  referred  to  in 
People  V.  Louisville  &  N.  R.  Co.,  120  111.  48,  results  from  the  fran- 
chise granted  by  the  charter  to  exercise  the  right  of  eminent  domain, 
and  is  therefore  totally  different  from  the  power  of  locating  stations, 
which,  from  its  very  nature,  is  a  continuing  one.  And  so  we  said  in 
Marsh  v.  Railroad  Co.,  supra^  where  a  bill  had  been  filed  for  the  spe- 
cific performance  of  a  contract  to  locate  and  maintain  a  station  at  a 
particular  part:  "Railroad  companies,  in  order  to  fulfil  one  of  the 
ends  of  their  creation  —  the  promotion  of  the  public  welfare  — 
should  be  left  free  to  establish  and  re-establish  their  depots  whereso- 
ever the  accommodation  of  the  wants  of  the  public  may  require." 
And  so,  again,  we  said  in  Railroad  Co.  t>.  Mathers,  supra:  "When- 
ever the  public  convenience  requires  that  a  station  on  a  railroad 
should  be  established  at  a  particular  point,  and  it  can  be  done  without 
detriment  to  the  interests  of  the  stockholders  of  the  company,  the 
law  authorizes  it  to  be  established  there,  and  no  contract  between  a 
board  of  directors  and  individuals  can  be  allowed  to  prohibit  it." 
And  in  the  very  recent  case  of  People  v.  Chicago  &  A.  R.  Co.,  130 
m.  175,  where  we  awarded  a  mandamus  commanding  the  location  and 

^  Part  of  the  opinion  only  is  given.  —  Ed. 


NORTHERN   PACIFIC    RAILROAD   V.   WASHINGTON.  307 

maintaining  of  a  station  at  a  point  where  no  station  had  before  been 
located  and  maintained,  we  said:  "It  is  undoubtedly  the  rule  that 
railway  companies,  in  the  absence  of  statutory  provisions  limiting 
and  restricting  their  powers  are  vested  with  a  very  broad  discretion 
in  the  matter  of  locating,  constructing,  and  operating  their  railways, 
and  of  locating  and  maintaining  their  freight  and  passenger  stations. 
This  discretion,  however,  is  not  absolute,  but  is  subject  to  the  con- 
dition that  it  must  be  exercised  in  good  faith,  and  with  a  due  regard 
to  the  necessities  and  convenience  of  the  public." 

The  rule  has  been  so  often  announced  by  this  court  that  it  is 
unnecessary  to  cite  the  cases ;  that  a  mandamus  will  never  be  awarded 
unless  the  right  to  have  the  thing  done  which  is  sought  is  clearly 
established.  If  the  right  is  doubtful,  the  writ  will  be  refused.  The 
burden  was  on  the  relator  to  prove  a  case  authorizing  the  issuing  of 
the  writ,  and  in  our  opinion  that  proof  has  not  been  made.  .  .  . 
The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause  is 
remanded  to  that  court  with  direction  to  enter  judgment  for  the 
respondent. 


NORTHERN   PACIFIC   RAILROAD   v.   WASHINGTON. 

Supreme  Court  of  the  United  States,  1892. 

[142  U.  S.  492.] 

A  petition  in  the  name  of  the  Territory  of  Washington,  at  the  rela- 
tion of  the  prosecuting  attorney  for  the  county  of  Yakima  and  four 
other  counties  in  the  territory,  was  filed  in  the  District  Court  of  the 
fourth  judicial  district  of  the  territory  on  February  20,  1885,  for  a 
mandamus  to  compel  the  Northern  Pacific  Railroad  Company  to 
erect  and  maintain  a  station  at  Yakima  City,  on  the  Cascade  branch 
of  its  railroad,  extending  from  Pasco  Junction,  on  the  Columbia 
River,  up  the  valley  of  the  Yakima  River  and  through  the  county  of 
Yakima,  towards  Puget  Sound,  and  to  stop  its  trains  there  to  receive 
and  deliver  freight,  and  to  receive  and  let  off  passengers.^ 

Mr.  Justice  Gray,  after  stating  the  case  as  above,  delivered  th.- 
opinion  of  the  Court. 

A  writ  of  mandamus  to  compel  a  railroad  corporation  to  do  a  par- 
ticular  act  in  constructing  its  road  or  buildings,  or  in  running  i^j 
trains,  can  be  issued  only  when  there  is  a  specific  legal  duty  on  its 
part  to  do  that  act,  and  clear  proof  of  a  breach  of  that  duty. 

If,  as  in  Railroad  n.  Hall,  91  U.  S.  343,  the  charter  of  a  railroad 
corporation  expressly  requires  it  to  maintain  its  railroad  as  a  contin- 
uous line,  it  may  be  compelled  to  do  so  by  mandarmis.  So  if  the 
charter  requires  the  corporation  to  construct  its  road  and  to  run  its 
cars  to  a  certain  point  on  tide-water  (as  was  held  to  be  the  case  iv 

^  Part  of  the  statement  of  the  case  is  omitted  —  Ed. 


308  NORTHERN    PACIFIC   RAILROAD   V.   WASHINGTON. 

State  V.  Railroad,  29  Conn.  538),  and  it  has  so  constructed  its  road 
and  used  it  for  years,  it  may  be  compelled  to  continue  to  do  so. 
And  mandamus  will  lie  to  compel  a  corporation  to  build  a  bridge  in 
accordance  with  an  express  requirement  of  statute.  Railway  v.  Mis- 
sissippi, 112  U.  S.  12;  People  c.  Railroad,  70  N.  Y.  569. 

But  if  the  charter  of  a  railroad  corpoi'ation  simply  authorizes  the 
corporation,  without  requiring  it,  to  construct  and  maintain  a  railroad 
to  a  certain  point,  it  has  been  held  that  it  cannot  be  compelled  by 
mandamus  to  complete  or  to  maintain  its  road  to  that  point  when  it 
would  not  be  remunerative.  Railway  Co.  v.  Queen,  1  El.  &  Bl. 
858;  Id.  874;  Com.  v.  Railroad,  12  Gray,  180;  States.  Railroad,  18 
Minn.  40. 

The  difficulties  in  the  way  of  issuing  a  mandamus  to  compel  the 
maintenance  of  a  railroad  and  the  running  of  trains  to  a  terminus 
fixed  by  the  charter  itself  are  much  increased  when  it  is  sought  to 
compel  the  corporation  to  establish  or  to  maintain  a  station  and  to 
stop  its  trains  at  a  particular  place  on  the  line  of  its  road.  The  loca- 
tion of  stations  and  warehouses  for  receiving  and  delivering  passen- 
gers and  freight  involves  a  comprehensive  view  of  the  interests  of 
the  public,  as  well  as  of  the  corporation  and  its  stockholders,  and  a 
consideration  of  many  circumstances  concerning  the  amount  of  popu- 
lation and  business  at,  or  near,  or  within  convenient  access  to  one 
point  or  another,  which  are  more  appropriate  to  be  determined  by 
the  directors,  or,  in  case  of  abuse  of  their  discretion,  by  the  legis- 
lature, or  by  administrative  boards  intrusted  by  the  legislature  with 
that  duty,  than  by  the  ordinary  judicial  tribunals. 

The  defendant's  charter,  after  authorizing  and  empowering  it  to 
locate,  construct,  and  maintain  a  continuous  railroad  "by  the  most 
eligible  route,  as  shall  be  determined  by  said  company,"  within  limits 
described  in  the  broadest  way,  both  as  to  the  terminal  points  and  as 
to  the  course  and  direction  of  the  road,  and  vesting  it  with  "all  the 
powers,  privileges,  and  immunities  necessary  to  carry  into  effect  the 
purposes  of  this  act  as  herein  set  forth,"  enacts  that  the  road  "shall  be 
constructed  in  a  substantial  and  workmanlike  manner,  with  all  the 
necessary  draws,  culverts,  bridges,  viaducts,  crossings,  turnouts, 
stations,  and  watering  places,  and  all  other  appurtenances."  The 
words  last  quoted  are  but  a  general  expression  of  what  would  be 
otherwise  implied  by  law,  and  cover  all  structures  of  every  kind 
needed  for  the  completion  and  maintenance  of  the  railroad.  They 
cannot  be  construed  as  imposing  any  specific  duty,  or  as  controlling 
the  discretion  in  these  respects  of  a  corporation  intrusted  with  such 
large  discretionary  powers  upon  the  more  important  questions  of  the 
course  and  the  termini  of  its  road.  The  contrast  between  these  gen- 
eral words  and  the  specific  requirements,  which  follow  in  the  same 
section,  that  the  rails  shall  be  manufactured  from  American  iron, 
and  that  "a  uniform  gauge  shall  be  established  throughout  the  entire 
length  of  the  road,"  is  significant. 


NORTHERN    PACIFIC    RAILROAD   V.    WASHINGTON.  309 

To  hold  that  the  directors  of  this  corporation,  in  determining  the 
number,  place,  and  size  of  its  stations  and  other  structures,  having 
regard  to  the  public  convenience  as  well  as  to  its  own  pecuniary 
interests,  can  be  controlled  by  the  courts  by  writ  of  mandamus,  would 
be  inconsistent  with  many  decisions  of  high  authority  in  analogous 
cases. 

The  constitution  of  Colorado,  of  1876,  art.  15,  §  4,  provided  that 
"all  railroads  shall  be  public  highways,  and  all  railroad  companies 
shall  be  common  carriers;"  and  that  "every  railroad  company  shall 
have  the  right  with  its  road  to  intersect,  connect  with,  or  cross  any  other 
railroad."  Section  6  of  the  same  article  was  as  follows :  "All  individ- 
uals, associations,  and  corporations  shall  have  equal  rights  to  have 
persons  and  property  transported  over  any  railroad  in  this  state,  and 
no  undue  or  unreasonable  discrimination  shall  be  made  in  charges  or 
facilities  for  transportation  of  freight  or  passengers  within  the  state, 
and  no  railroad  company,  nor  any  lessee,  manager,  or  employee 
thereof,  shall  give  any  preference  to  individuals,  associations,  or 
corporations  in  furnishing  car  or  motive  power."  The  General  Laws 
of  Colorado,  of  1877,  c.  19,  §  111,  authorized  every  railroad  company 
"to  cross,  intersect,  or  connect  its  railways  with  any  other  railway," 
"to  receive  and  convey  persons  and  property  on  its  railway,"  and  "to 
erect  and  maintain  all  necessary  and  convenient  buildings  and  sta- 
tions, fixtures  and  machinery,  for  the  convenience,  accommodation, 
and  use  of  passengers,  freights,  and  business  interests,  or  which  may 
be  necessary  for  the  construction  or  operation  of  said  railway." 
This  court  held  that  section  6  of  article  15  of  the  constitution  of 
Colorado  was  only  declaratory  of  the  common  law;  that  the  right 
secured  by  section  4  to  connect  railroads  was  confined  to  their  con- 
nection as  physical  structures,  and  did  not  imply  a  connection  of 
business  with  business;  and  that  neither  the  common  law,  nor  the 
constitution  and  statutes  of  Colorado,  compelled  one  railroad  corpora- 
tion to  establish  a  station  or  to  stop  its  cars  at  its  junction  with  the 
railroad  of  another  corporation,  although  it  had  established  a  union 
station  with  the  connecting  railroad  of  a  third  corporation,  and  had 
made  provisions  for  the  transaction  there  of  a  joint  business  with 
that  corporation.  Chief  Justice  Waite,  in  delivering  the  opinion, 
said:  "No  statute  requires  that  connected  roads  shall  adopt  joint 
stations,  or  that  one  railroad  company  shall  stop  at  or  make  use  of 
the  station  of  another.  Each  company  in  the  state  has  the  legal 
right  to  locate  its  own  stations,  and,  so  far  as  statutory  regulations 
are  concerned,  is  not  required  to  use  any  other.  A  railroad  company 
is  prohibited,  both  by  the  common  law  and  by  the  constitution  of 
Colorado,  from  discriminating  unreasonably  in  favor  of  or  against 
another  company  seeking  to  do  business  on  its  road;  but  that  does 
not  necessarily  imply  that  it  must  stop  at  the  junction  of  one  and 
interchange  business  there  because  it  has  established  joint  depot 
accommodations  and  provided  facilities  for  doing  a  connecting  busi- 


310  NORTHERN    PACIFIC   RAILROAD   V.   WASHINGTON. 

ness  with  another  company  at  another  place.  A  station  may  be 
established  for  the  special  accommodation  of  a  particular  customer; 
but  we  have  never  heard  it  claimed  that  every  other  customer  could, 
by  a  suit  in  equity,  in  the  absence  of  a  statutory  or  contract  right, 
compel  the  company  to  establish  a  like  station  for  his  special  accom- 
modation at  some  other  place.  Such  matters  are,  and  always  have 
been,  proper  subjects  for  legislative  consideration,  unless  prevented 
by  some  charter  contract;  but,  as  a  general  rule,  remedies  for  in- 
justice of  that  kind  can  only  be  obtained  from  the  legislature.  A 
court  of  chancery  is  not,  any  more  than  is  a  court  of  law,  clothed 
with  legislative  power."  Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  & 
N.  O.  R.  Co.,  110  U.  S.  667,  681,  682. 

The  Court  of  Appeals  of  New  York,  in  a  very  recent  case,  refused 
to  grant  a  mandamus  to  compel  a  railroad  corporation  to  construct 
and  maintain  a  station  and  warehouse  of  sufficient  capacity  to  accom- 
modate passengers  and  freight  at  a  village  containing  1,200  inhabi- 
tants, and  furnishing  to  the  .defendaut  at  its  station  therein  a  large 
freight  and  passenger  business,  although  it  was  admitted  that  its 
present  building  at  that  place  was  entirely  inadequate;  that  the 
absence  of  a  suitable  one  was  a  matter  of  serious  damage  to  large 
numbers  of  persons  doing  business  at  that  station;  that  the  railroad 
commissioners  of  the  state,  after  notice  to  the  defendant,  had  adjudged 
and  recommended  that  it  should  construct  a  suitable  building  there 
within  a  certain  time;  and  that  the  defendant  had  failed  to  take  any 
steps  in  that  direction,  not  for  want  of  means  or  abilitj',  but  because 
its  directors  had  decided  that  its  interests  required  it  to  postpone 
doing  so.  The  court,  speaking  by  Judge  Danforth,  while  recogniz- 
ing that  "  a  plainer  case  could  hardly  be  presented  of  a  deliberate 
and  intentional  disregard  of  the  public  interest  and  the  accommoda- 
tion of  the  public,"  yet  held  that  it  was  powerless  to  interpose,  be- 
cause the  defendant,  as  a  carrier,  was  under  no  obligation,  at  common 
law,  to  provide  warehouses  for  freight  offered,  or  station-houses  for 
passengers  waiting  transportation,  and  no  such  duty  was  imposed 
by  the  statutes  authorizing  companies  to  construct  Jind  maintain 
railroads  "for  public  use  in  the  conveyance  of  persons  and  property," 
and  to  erect  and  maintain  all  necessary  and  convenient  buildings 
and  stations  "for  the  accommodation  and  use  of  their  passengers, 
freight,  and  business,"  and  because,  under  the  statutes  of  New  York, 
the  proceedings  and  determinations  of  the  railroad  commissioners 
amounted  to  nothing  more  than  an  inquest  for  information,  and  had 
no  effect  beyond  advice  to  the  railroad  company  and  suggestion  to 
the  legislature,  and  could  not  be  judicially  enforced.  The  court 
said:  "  As  the  duty  sought  to  be  imposed  upon  the  defendant  is  not 
a  specific  duty  prescribed  by  statute,  either  in  terms  or  by  reasonable 
construction,  the  court  cannot,  no  matter  how  apparent  the  necessity, 
enforce  its  performance  by  mandanuts.  It  cannot  compel  the  erection 
of  a  station-house,  nor  the  enlargement  of  one."     "As  to  that,  the 


NORTHERN   PACIFIC   RAILROAD   V.   WASHINGTON.  311 

statute  imports  an  authority  only,  not  a  command,  to  be  availed  of 
at  the  option  of  the  company  in  the  discretion  of  its  directors,  who 
are  empowered  by  statute  to  manage  '  its  affairs,'  among  which  must 
be  classed  the  expenditure  of  money  for  station  buildings  or  other 
structures  for  the  promotion  of  the  convenience  of  the  public,  ha\jng 
regard  also  to  its  own  interest.  With  the  exercise  of  that  discretion 
the  legislature  only  can  interfere.  No  doubt,  as  the  respondent 
urges,  the  court  may  by  mandamus  also  act  in  certain  cases  affecting 
corporate  matters,  but  only  where  the  duty  concerned  is  specific  and 
plainly  imposed  upon  the  corporation."  "Such  is  not  the  case  before 
us.  The  grievance  complained  of  is  an  obvious  one,  but  the  burden 
of  removing  it  can  be  imposed  upon  the  defendant  only  by  legisla- 
tion. The  legislature  created  the  corporation  upon  the  theory  that 
its  functions  should  be  exercised  for  the  public  benefit.  It  may  add 
other  regulations  to  those  now  binding  it,  but  the  court  can  interfere 
only  to  enfoi'ce  a  duty  declared  by  law.  The  one  presented  in  this 
case  is  not  of  that  character;  nor  can  it  by  any  fair  or  reasonable 
construction  be  implied."    People  v.  Railroad,  104  N.  Y.  58,  QiQ^  67. 

In  Com.  V.  Railroad,  the  Supreme  Judicial  Court  of  Massachusetts, 
in  holding  that  a  railroad  corporation,  whose  charter  was  subject 
to  amendment,  alteration,  or  repeal  at  the  pleasure  of  the  legislature, 
might  be  required  by  a  subsequent  statute  to  construct  a  station  and 
stop  its  trains  at  a  particular  place  on  its  road,  said:  "If  the  direc- 
tors of  a  railroad  were  to  find  it  for  the  interest  of  the  stockholders 
to  refuse  to  carry  any  freight  or  passengers  except  such  as  they  might 
take  at  one  end  of  the  road  and  carry  entirely  through  to  the  other 
end,  and  were  to  refuse  to  establish  any  way  stations,  or  do  any  way 
business  for  that  reason,  though  the  road  passed  for  a  long  distance 
through  a  populous  part  of  the  state,  this  would  be  a  case  manifestly 
requiring  and  authorizing  legislative  interference  under  the  clause 
in  question ;  and  on  the  same  ground,  if  they  refuse  to  provide  rea- 
sonable accommodation  for  the  people  of  any  smaller  locality,  the 
legislature  may  reasonably  alter  and  modify  the  discretionary'  power 
which  the  charter  confers  upon  the  directors,  so  as  to  make  the  duty 
to  provide  the  accommodation  absolute.  Whether  a  reasonable 
ground  for  interference  is  presented  in  any  particular  case  is  for  the 
legislature  to  determine,  and  their  determination  on  this  point  must 
be  conclusive."     103  Mass.  254,  258. 

Upon  the  same  principle,  the  Supreme  Judicial  Court  of  Maine 
compelled  a  railroad  corporation  to  build  a  station  at  a  specified 
place  on  its  road  in  accordance  with  an  order  of  railroad  commis- 
sioners, expressly  empowered  by  the  statutes  of  the  state  to  make 
such  an  order,  and  to  apply  to  the  court  to  enforce  it.  Laws  Me. 
1871,  c.  204;  Commissioners  v.  Portland  &  O.  R.  Co.,  63  Me.  270. 

In  Railway  Co.  v.  Commissioners,  a  railway  company  was  held  by 
Lord  Chancellor  Selborne,  Lord  Chief  Justice  Coleridge,  and  Lord 
Justice  Brett,  in  the  English  Court  of  Appeal,  to  be  under  no  obliga 


312  NORTHERN   PACIFIC   RAILROAD   V,   WASHINGTON. 

tion  to  establish  stations  at  any  particular  place  or  places  unless  it 
thought  fit  to  do  so,  and  was  held  bound  to  afford  improved  facilities 
for  receiving,  forwarding,  and  delivering  passengers  and  goods  at  a 
station  once  established  and  used  for  the  purpose  of  traffic  only  so 
faqas  it  had  been  ordered  to  afford  them  by  the  railway  commis- 
sioners, within  powers  expressly  conferred  by  Act  of  Parliament. 
6  Q.  B.  Div.  586,  592. 

The  decision  in  State  u.  Railroad  Co.,  17  Neb.  647,  cited  in  the 
opinion  below,  proceeded  upon  the  theory  (inconsistent  with  the 
judgments  of  this  court  in  Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  <& 
N.  O.  R.  Co.,  and  of  the  Court  of  Appeals  of  New  York  in  People  y. 
Railroad  Co.,  above  stated)  that,  independently  of  any  statute  re- 
quirements, a  railroad  coiporation  might  be  compelled  to  establish  a 
station  and  to  stop  its  trains  at  any  point  on  the  line  of  its  road  at 
which  the  court  thought  it  reasonable  that  it  should. 

The  opinions  of  the  Supreme  Court  of  Illinois,  though  going  fur- 
ther than  those  of  most  other  courts  in  favor  of  issuing  writs  of 
mandamus  to  railroad  corporations,  afford  no  countenance  for  grant- 
ing the  writ  in  the  case  at  bar.  In  People  v.  Railroad  Co.,  120  111. 
48,  a  mandamus  was  issued  to  compel  the  company  to  run  all  its 
passenger  trains  to  a  station  which  it  had  once  located  and  used  in 
a  town  made  a  terminal  point  by  the  charter,  and  which  was  a  county 
seat,  because  the  corporation  had  no  legal  power  to  change  its  loca- 
tion, and  was  required  by  statute  to  stop  all  trains  at  a  county  seat. 
In  People  v.  Railroad  Co.,  130  111.  175,  in  which  a  mandamus  was 
granted  to  compel  a  railroad  company  to  establish  and  maintain  a 
station  in  a  certain  town,  the  petition  for  the  writ  alleged  specific 
facts  making  out  a  clear  and  strong  case  of  public  necessity,  and 
also  alleged  that  the  accommodation  of  the  public  living  in  or  near 
the  town  required,  and  long  had  required,  the  establishment  of  a 
station  on  the  line  of  the  road  within  the  town ;  and  the  decision  was 
that  a  demurrer  to  the  petition  admitted  both  the  specific  and  the 
general  allegations,  and  must  therefore  be  overruled.  The  court,  at 
pages  182,  183,  of  that  case,  and  again  in  Railroad  Co.  v.  People, 
132  111.  559,  571,  said:  "It  is  undoubtedly  the  rule  that  railway  com- 
panies, in  the  absence  of  statutory  provisions  limiting  and  restrict- 
ing their  powers,  are  vested  with  a  very  broad  discretion  in  the 
matter  of  locating,  constructing,  and  operating  their  railways,  and 
of  locating  and  maintaining  their  freight  and  passenger  stations. 
This  discretion,  however,  is  not  absolute,  but  is  subject  to  the  condi- 
tion that  it  must  be  exercised  in  good  faith,  and  with  a  due  regard 
to  the  necessities  and  convenience  of  the  public."  But  in  the  latter 
case  the  court  also  said:  "The  company  cannot  be  compelled,  on  the 
one  hand,  to  locate  stations  at  points  where  the  cost  of  maintaining 
them  will  exceed  the  profits  resulting  therefrom  to  the  company,  nor 
allowed,  on  the  other  hand,  to  locate  them  so  far  apart  as  to  practi- 
cally deny  to  communities  on  the  line  of  the  road  reasonable  access  to 


NORTHERN   PACIFIC   RAILROAD   V.   WASHINGTON,  313 

its  use.  The  duty  to  maintain  or  continue  stations  must  manifestly 
rest  upon  the  same  principle,  and  a  company  cannot,  therefore,  be 
compelled  to  maintain  or  continue  a  station  at  a  point  when  the 
welfare  of  the  company  and  the  community  in  general  requires  that 
it  should  be  changed  to  some  other  point."  Page  570.  "The  rule 
has  been  so  often  announced  by  this  court  that  it  is  unnecessary  to 
cite  the  cases,  that  a  mandamus  will  never  be  awarded  unless  the 
right  to  have  the  thing  done  which  is  sought  is  clearly  established." 
Page  572.     And  upon  these  reasons  the  writ  was  refused. 

Section  691  of  the  Code  of  Washington  Territory  of  1881,  follow- 
ing the  common  law,  defines  the  cases  in  which  a  writ  of  mandamus 
may  issue  as  "to  any  inferior  court,  corporation,  board,  officer,  or 
person  to  compel  the  performance  of  an  act  which  the  law  specially 
enjoins  as  a  duty  resulting  from  an  office,  trust,  or  station."  By  the 
same  code,  in  mandamus,,  as  in  civil  actions,  issues  of  fact  may  be 
tried  by  a  jury;  the  verdict  may  be  either  general  or  special,  and,  if 
special,  may  be  in  answer  to  questions  submitted  by  the  court;  and 
material  allegations  of  the  plaintiff  not  denied  by  the  answer,  as  well 
as  material  allegations  of  new  matter  in  the  answer  not  denied  in  the 
replication,  are  deemed  admitted,  but  a  qualificid  admission  cannot  be 
availed  of  by  the  other  party,  except  as  qualified.  Sections  103, 
240,  242,  694,  696;  Breemer  v.  Burgess,  2  Wash.  T.  290,  296;  Gil- 
dersleeve  v.  Landon,  73  N.  Y.  609.  The  replication  filed  in  this  case, 
not  being  copied  in  the  record  sent  up,  may  be  assumed,  as  most 
favorable  to  the  defendant  in  error,  to  have  denied  all  allegations  of 
new  matter  in  the  answer. 

The  leading  facts  of  this  case,  then,  as  appearing  by  the  special 
verdict,  taken  in  connection  with  the  admissions,  express  or  implied, 
in  the  answer,  are  as  follows:  The  defendant  at  one  time  stopped  its 
trains  at  Yakima  City,  but  never  built  a  station  there,  and,  after  com- 
pleting its  road  four  miles  further,  to  North  Yakima,  established  a 
freight  and  passenger  station  at  North  Yakima,  which  was  a  town  laid 
out  by  the  defendant  on  its  own  unimproved  land,  and  thereupon 
ceased  to  stop  its  trains  at  Yakima  City.  In  consequence,  appar- 
ently, of  this,  Yakima  City,  which  at  the  time  of  filing  the  petition 
for  mandamus  was  the  most  important  town,  in  population  and  busi- 
ness, in  the  county,  rapidly  dwindled,  and  most  of  its  inhabitants 
removed  to  North  Yakima,  which  at  the  time  of  the  verdict  had  be- 
come the  largest  and  most  important  town  in  the  county.  No  other 
specific  facts  as  to  North  Yakima  are  admitted  by  the  parties  or 
found  by  the  jury.  The  defendant  could  build  a  station  at  Yakima 
City,  but  the  cost  of  building  one  would  be  $8,000,  and  the  expense 
of  maintaining  it  $150  a  month,  and  the  earnings  of  the  whole  of 
this  division  of  the  defendant's  road  are  insufficient  to  pay  its  run- 
ning expenses.  The  special  verdict  includes  an  express  finding  (which 
appears  to  us  to  be  of  pure  matter  of  fact,  inferred  from  various  cir- 
cumstances, some  of  which  are  evidently  not  specifically  found,  and 


314  NORTHERN   PACIFIC   RAILROAD   V.   WASHINGTON. 

to  be  in  no  sense,  as  assumed  by  the  court  below,  a  conclusion  of 
law)  that  tliere  are  other  stations  for  receiving  freight  and  passengers 
between  North  Yakima  and  Pasco  Junction,  which  furnish  sutlicient 
facilities  for  the  country  south  of  North  Yakima,  which  must  include 
Yakima  City,  as  well  as  an  equally  explicit  finding  (which  appears 
to  have  been  wholly  disregarded  by  the  court  below)  that  the  passen- 
ger and  freight  traffic  of  the  people  living  in  the  surrounding  country, 
considering  them  as  a  community,  would  be  better  accommodated  by 
a  station  at  North  Yakima  than  by  one  at  Yakima  City.  It  also 
appears  of  record  that,  after  the  verdict  and  before  the  district  court 
awarded  the  writ  of  mandamus,  the  county  seat  was  removed,  pur- 
suant to  an  act  of  the  territorial  legislature,  from  Yakima  City  to 
North  Yakima. 

The  mandamus  prayed  for  being  founded  on  a  suggestion  that  the 
defendant  had  distinctly  manifested  an  intention  not  to  perform  a 
definite  duty  to  the  public,  required  of  it  by  law,  the  petition  was 
rightly  presented  in  the  name  of  the  territory  at  the  relation  of  its 
prosecuting  attorney  (Attorney-General  v.  Boston,  123  Mass.  460, 
479;  Code  Wash.  T.  §  2171);  and  no  demand  upon  the  defendant 
was  necessary  before  applying  for  the  writ  (Com.  u.  Commissioners, 
37  Pa.  St.  237 ;  State  v.  Board,  38  N.  J.  Law,  259 ;  Mottu  v.  Prim- 
rose, 23  Md.  482;  Attorney-General  v.  Boston,  123  Mass.  460,  477). 

But  upon  the  facts  found  and  admitted  no  suflScient  case  is  made 
for  a  writ  of  mandamus,  even  if  the  court  could,  under  any  circum- 
stances, issue  such  a  writ  for  the  purpose  set  forth  in  the  petition. 
The  fraudulent  and  wrongful  intent  charged  against  the  defendant  in 
the  petition  is  denied  in  the  answer,  and  is  not  found  by  the  jury. 
The  fact  that  the  town  of  North  Yakima  was  laid  out  by  the  defend- 
ant on  its  own  land  cannot  impair  the  right  of  the  inhabitants  of  that 
town,  whenever  they  settled  there,  or  of  the  people  of  the  surrounding 
country,  to  reasonable  access  to  the  railroad.  No  ground  is  shown 
for  requiring  the  defendant  to  maintain  stations  both  at  Yakima 
City  and  at  North  Yakima;  there  are  other  stations  furnishing  sufiii- 
cient  facilities  for  the  whole  country  from  North  Yakima  southward 
to  Pasco  Junction;  the  earnings  of  the  division  of  the  defendant's 
road  between  those  points  are  insufllcient  to  pay  its  running  expenses; 
and  to  order  the  station  to  be  removed  from  North  Yakima  to  Yakima 
City  would  inconvenience  a  much  larger  part  of  the  public  than  it 
would  benefit,  even  at  the  time  of  the  return  of  the  verdict;  and, 
before  judgment  in  the  district  court,  the  legislature,  recognizing 
that  the  public  interest  required  it,  made  North  Yakima  the  county 
seat.  The  question  whether  a  mandanuts  should  issue  to  protect  the 
interest  of  the  public  does  not  depend  upon  a  state  of  facts  existing 
when  the  petition  was  filed,  if  that  state  of  facts  has  ceased  to  exist 
when  the  final  judgment  is  rendered.  In  this  regard,  as  observed  by 
Lord  Chief  Justice  Jervis  in  Railway  Co.  i\  Queen,  already  cited, 
"there  is  a  very  great  difference  between  an    indictment  for  no* 


CONCORD,   ETC.    KAILROAD   V.   BOSTON   AND   MAINE    liAILUOAD.       315 

fulfilling  a  public  duty,  and  a  mandamus  commanding  the  party 
liable  to  fulfil  it."  1  El.  &  Bl.  878.  The  court  will  never  order  a 
railroad  station  to  be  built  or  maintained  contrary  to  the  public  in- 
terest.    T.  &  P.  Railway  v.  Marshall,  136  U.  S.  393. 

For  the  reasons  above  stated,  the  judgment  of  the  Supreme  Court 
of  the  territory  must  be  reversed,  and  the  case  remanded,  with  direc- 
tions to  enter  judgment  for  the  defendant,  dismissing  the  petition; 
and,  Washington  having  been  admitted  into  the  Union  as  a  state  by 
Act  of  Congress  passed  while  this  writ  of  error  was  pending  in  this 
court,  the  mandate  will  be  directed  as  the  nature  of  the  case  requires, 
to  the  Supreme  Court  of  the  state  of  Washington.  Act  Feb,  22,  1889, 
c.  180,  §§  22,  23  (25  St.  682,  683). 

Judgment  reversed^  and  mandate  accordingly. 

Mr.  Justice  Brewer  (with  whom  concurred  Mr.  Justice  Field  and 
Mr.  Justice   Harlan),  dissenting. 


CONCORD  AND  MONTREAL  RAILROAD  v.  BOSTON  AND 
MAINE  RAILROAD. 

Supreme  Court  of  New  Hampshire,  1893. 
[67  N.  H.  465.] 

Petition,  for  the  location  of  a  union  station  at  Manchester.  All  the 
parties  desire  the  erection  of  such  a  station,  which,  it  is  conceded,  the 
public  good  requires ;  but  they  are  unable  to  agree  upon  a  location. 
The  defendants  claim  that  the  court  has  no  jurisdiction. 

Per  Curiam.  The  legislature  has  not  authorized  the  railroad  com- 
missioners to  locate  railroad  stations  (P.  S.,  c.  155,  §§  11-23,  c.  159, 
§§  21,  22),  and  no  other  tribunal  is  directly  invested  with  that  power. 
It  is  conceded  that  the  public  good  requires  that  there  should  be  a 
union  passenger  station  in  the  city  of  Manchester,  to  be  used  b}'  the 
railroads  connecting  at  that  point,  for  the  accommodation  of  the  public 
as  well  as  for  their  own  convenience  and  advantage.  From  this  con- 
cession it  necessarily  follows  that  it  is  the  legal  duty  of  the  parties  to 
locate,  erect,  and  maintain  such  a  depot  as  public  necessit}'  requires. 
The  fact  that  they  are  unable  to  agree  upon  a  suitable  location  does 
not  relieve  them  from  that  duty ;  and  the  question  is,  whether  this 
obligation  is  an  unenforceable  one  in  the  absence  of  express  legislation 
upon  the  subject,  or  whether  the  right,  which  each  has  in  the  perform- 
ance of  its  public  function,  to  locate  a  union  station  at  a  reasonablv 
convenient  point  cannot  be  vindicated  and  enforced  by  the  orders  and 
decrees  of  this  court. 

The  right  of  these  parties  and  the  public  to  have  the  union  sta* 


316       JONES   V.   NEWPORT  NEWS  AND  MISSISSIPPI  VALLEY  CO. 

tion  at  Manchester  located  in  the  proper  place  is  a  legal  right,  the 
enforcement  of  which  is  not  prevented  bj'  the  circumstance  that  the 
remedial  power  is  not  conferred  upon  a  tribunal  of  special  and  limited 
jurisdiction.  It  is  a  right  which  can  be  judicially-  determined  at  the 
trial  term  upon  a  petition  or  bill  in  equit}'  seeking  such  relief.  The 
procedure  will  be  such  as  is  considered  most  appropriate  for  the  work 
to  be  done.    Walker  v.  Walker,  63  N.  H.  321. 

Case  discharged.^ 


JONES   V.    NEWPORT  NEWS   &  MISSISSIPPI  VALLEY  CO. 
Circuit  Court  of  Appeals,  Sixth  Circuit,  1895. 

[65  Fed.  736.2] 

Action  by  H.  M.  Jones  against  the  Newport  News  &  Mississippi 
Valley  Company  for  injury  to  and  discontinuance  of  a  railroad  switch 
to  plaintiff's  warehouse.  A  demurrer  was  sustained  to  that  part  of 
the  petition  which  claimed  damages  for  discontinuance  of  the  switch, 
and  plaintiff  brings  error. 

Taft,  Circuit  Judge.  Plaintiff  bases  his  claim  for  damages  — 
First,  on  the  violation  of  an  alleged  common-law  duty ;  and,  second, 
on  the  breach  of  a  contract. 

1.  The  proposition  put  forward  on  plaintiff's  behalf  is  that  when  a 
railroad  company  permits  a  switch  connection  to  be  made  between 
its  line  and  the  private  warehouse  of  any  person,  and  delivers  mer- 
chandise over  it  for  years,  it  becomes  part  of  the  main  line  of  the 
railroad,  and  cannot  be  discontinued  or  removed,  and  this  on 
common-law  principles  and  without  the  aid  of  a  statute.  It  may  be 
safely  assumed  that  the  common  law  imposes  no  greater  obligation 
upon  a  common  carrier  with  respect  to  a  private  individual  than  with 
respect  to  the  public.  If  a  railroad  company  may  exercise  its  dis- 
cretion to  discontinue  a  public  station  for  passengers  or  a  public  ware- 
house for  freight  without  incurring  any  liability  or  rendering  itself 
subject  to  judicial  control,  it  would  seem  necessarily  to  follow  that 
it  may  exercise  its  discretion  to  establish  or  discontinue  a  private 
warehouse  for  one  customer. 

In  Northern  Pac.  Ry.  Co.  v.  Washington,  142  U.  S.  492,  it  was 
held  that  d^  mandamus  would  not  lie  to  compel  a  railroad  company  to 
establish  a  station  and  stop  its  trains  at  a  town  at  which  for  a  time 
it  did  stop  its  trains  and  deliver  its  freight. 

In  Com.  V.  Fitchburg  R.  Co.,  12  Gray,  180,  it  was  attempted  to 
compel  a  railroad  company  to  run  regular  passenger  trains  over  cer- 

1  Compare:   R.  R.    i'.  Commissioners,  6  Q.  B.  D.  586;  P.  v.  R.  R.,  120  111.  48; 
Commissioners  v.  R.  R.,  63  Me.  273  ;  P.  r.  R.  R.,  104  N.  Y.  58.  — Ed. 
'  This  case  is  Abridged.  —  Ed. 


JONES  V.   NEWPORT   NEWS   «fc  MISSISSIPPI   VALLEY   CO.  317 

tain  branch  lines  upon  which  they  had  been  run  for  a  long  time,  but 
had  been  discontinued  because  tbey  were  unremuuerative.  The  court 
held  that  mandanius  would  not  lie  because  the  maintenance  of  such 
facilities  was  left  to  the  discretion  of  the  directors.^ 

It  is  true  that  the  foregoing  were  cases  of  mandamus,  and  that  the 
court  exercises  a  discretion  in  the  issuance  of  that  writ  which  cannot 
enter  into  its  judgment  in  an  action  for  damages  for  a  breach  of  duty. 
But  the  cases  show  that  the  reason  why  the  writ  cannot  go  is  because 
there  is  no  legal  right  of  the  public  at  common  law  to  have  a  station 
established  at  any  particular  place  along  the  line,  or  to  object  to  a 
discontinuance  of  a  station  after  its  establishment.  They  make  it 
clear  that  the  directors  have  a  discretion  in  the  interest  of  the  public 
and  the  company  to  decide  where  stations  shall  be,  and  where  they 
shall  remain,  and  that  this  discretion  cannot  be  controlled  in  the 
absence  of  statutory  provision.  Such  uncontrollable  discretion  is 
utterly  inconsistent  with  the  existence  of  a  legal  duty  to  maintain  a 
station  at  a  particular  place,  a  breach  of  which  can  give  an  action  for 
damages.  If  the  directors  have  a  discretion  to  establish  and  discon- 
tinue public  stations,  a  fortiori  have  they  the  right  to  discontinue 
switch  connections  to  private  warehouses.  The  switch  connection 
and  transportation  over  it  may  seriously  interfere  with  the  conven- 
ience and  safety  of  the  public  in  its  use  of  the  road.  It  may  much 
embarrass  the  general  business  of  the  company.  It  is  peculiarly 
within  the  discretion  of  the  directors  to  determine  whether  it  does  so 
or  not.  At  one  time  in  the  life  of  the  company,  it  may  be  useful  and 
consistent  with  all  the  legitimate  purposes  of  the  company.  A 
change  of  conditions,  an  increase  in  business,  a  necessity  for  travel 
at  higher  speed,  may  make  such  a  connection  either  inconvenient  or 
dangerous,  or  both.  We  must  therefore  dissent  altogether  from  the 
proposition  that  the  establishment  and  maintenance  of  a  switch  con- 
nection of  the  main  line  to  a  private  warehouse  for  any  length  of  time 
can  create  a  duty  of  the  railroad  company  at  common  law  forever  to 
maintain  it.     There  is  little  or  no  authority  to  sustain  it. 

The  latest  of  the  Illinois  cases  which  are  relied  upon  is  based  upon 
a  constitutional  provision  which  requires  all  railroad  companies 
to  permit  connections  to  be  made  with  their  track,  so  that  the  con- 
signee of  grain  and  any  public  warehouse,  coal  bank,  or  coal  yard 
may  be  reached  by  the  cars  of  said  railroad.  The  supreme  court  of 
that  state  has  held  that  the  railroad  company  has  a  discretion  to  say 
in  what  particular  manner  the  connection  shall  be  made  with  its  main 
track,  but  that  this  discretion  is  exhausted  after  the  completion  of  the 
switch  and  its  use  without  objection  for  a  number  of  years.  Railroad 
Co.  V.  Suffern,  129  111.  274.  But  this  is  very  far  from  holding  that 
there  is  any  common-law  liability  to  maintain  a  side  track  forever 

1  An  extract  from  the  opinion  in  Ry.  r.  Washington  is  omitted.  The  Court  also 
cited  Peo.  v.  N.  Y.  L.  E.  &  W.  R.  R.,  104  N.  Y.  58 ;  Florida,  C.  &  P.  R.  R.  v.  State, 
31  Fla.  482.  —  Ed. 


318         JONES  V.   NEWPOET   NEWS   A   MISSISSIPPI   VALLEY   CO. 

after  it  has  once  been  established.  The  other  Illinois  cases  (Vincent 
/'.  Railroad  Co.,  49  111.  33;  Chicago  &  N.  W.  Ry.  Co.  v.  People,  56  111. 
365)  may  be  distinguished  in  the  same  way.  They  depended  on  stat- 
utory obligations,  and  were  not  based  upon  the  common  law,  though 
there  are  some  remarks  in  the  nature  of  obiter  dicta  which  gives  color 
to  plaintifif's  contention.  But  it  will  be  seen  hy  reference  to  Mr. 
Justice  Gray's  opinion,  already  quoted  from,  that  the  Illinois  cases 
have  exercised  greater  power  than  most  courts  in  controlling  the 
discretion  of  railroads  in  the  conduct  of  their  business. 

In  Barre  R.  Co.  r.  Montpelier  &  W.  R.  Co.,  61  Vt.  1,  the  question 
was  one  of  condemnation.  The  law  forbade  one  railroad  company  to 
condemn  the  line  of  another  road,  and  the  question  was  whether  the 
side  tracks  of  the  railroad  company,  which,  with  the  consent  of  the 
owners  of  the  granite  quarry,  ran  into  a  quarry  in  which  a  great  busi- 
ness was  done,  were  the  line  of  the  railroad  within  the  meaning  of  the 
statute.  It  was  held  that  they  were  so  far  as  to  impose  obligations 
on  and  create  exemptions  in  favor  of  the  railroad  company  operating 
the  side  tracks.  We  may  concede,  for  the  purpose  of  this  case, 
without  deciding,  that,  as  long  as  a  railroad  company  permits  a  side 
track  to  be  connected  with  its  main  line  for  the  purpose  of  delivering 
merchandise  in  car-load  lots  to  the  owner  of  the  side  track,  the  obli- 
gation of  the  railroad  company  is  the  same  as  if  it  were  delivering 
these  cars  at  its  own  warehouse,  on  its  own  side  track.  But  this  we 
do  not  conceive  to  be  inconsistent  with  the  right  of  the  directors  of 
the  railroad  company,  exercising  their  discretion  in  the  conduct  of 
the  business  of  the  company  for  the  benefit  of  the  public  and  the 
shareholders,  to  remove  a  side- track  connection. 

The  recital  of  the  facts  in  the  petition  in  this  case  is  enough  to  show 
that  the  switch  connection  of  the  plaintiff  was  one  of  probable  or 
possible  danger  to  the  public  using  the  railroad,  and  to  justify  its 
termination  for  that  reason.  It  was  made  on  a  high  fill,  on  the 
approach  to  a  bridge  across  a  stream,  and  the  switch  track  ran  on  to 
a  trestle  15  feet  above  the  ground,  and  terminating  in  the  air.  Even 
if  the  discretion  reposed  in  the  directors  to  determine  where  switch 
connections  shall  be  made  or  removed  were  one  for  the  abuse  of  which 
an  action  for  damages  would  lie,  the  petition  would  be  defective,  be- 
cause it  does  not  attempt  in  any  way  to  negative  the  dangerous  char- 
acter of  the  switch  which  the  facts  stated  certainly  suggest  as  a  good 
ground  for  the  action  of  the  company  complained  of.  .  .  . 

The  judgment  of  the  circuit  court  is  aflSrmed,  with  coste. 


OHICAGO  AND   NORTHWESTERN   RAILROAD   V.  PEOPLE.  319 

CHICAGO   AND   NORTHWESTERN  ^  RAILROAD  v.   PEOPLE. 

Supreme  Court  of  Illinois,  1870. 

[56  III.  365.] 

Mr.  Chief  Justice  Lawrence  delivered  the  opinion  of  the  Court : 
This  was  an  application  for  a  mandamus,  on  the  relation  of  the 
owners  of  the  Illinois  River  elevator,  a  grain  warehouse  in  the  city  of 
Chicago,  against  the  Chicago  and  Northwestern  Railroad  Company. 
The  relators  seek  by  the  writ  to  compel  the  railway  company  to  deliver 
to  said  elevator  whatever  grain  in  bulk  may  be  consigned  to  it  upon 
the  line  of  its  road.  There  was  a  return  duly  made  to  the  alternative 
writ,  a  demurrer  to  the  return,  and  a  judgment  pro  forma  upon  the 
demurrer,  directing  the  issuing  of  a  peremptory  writ.  From  that  judg- 
ment the  railway  company'  has  prosecuted  an  appeal. 

The  facts  as  presented  by  the  record  are  briefly  as  follows : 
The  company  has  freight  and  passenger  depots  on  the  west  side  of 
the  north  branch  of  the  Chicago  River,  north  of  Kinzie  Street,  for  the 
use,  as  we  understand  the  record  and  the  maps  which  are  made  a  part 
thereof,  of  the  divisions  known  as  the  Wisconsin  and  Milwaukie  divi- 
sions of  the  road,  running  in  a  northwesterly  direction.  It  also  has 
depots  on  the  east  side  of  the  north  branch,  for  the  use  of  the  Galena 
division,  running  westerl3\  It  has  also  a  depot  on  the  south  branch 
near  Sixteenth  Street,  which  it  reaches  by  a  track  diverging  from  the 
Galena  line  on  the  west  side  of  the  city.  The  map  indicates  a  line 
running  north  from  Sixteenth  Street  the  entire  length  of  West  Water 
Street,  but  we  do  not  understand  the  relators  to  claim  their  elevator 
should  be  approached  b}"  this  line,  as  the  respondent  has  no  interest  in 
this  line  south  of  Van  Buren  Street. 

Under  an  ordinance  of  the  city,  passed  August  10,  1858,  the  Pitts- 
burgh, Fort  Wayne,  and  Chicago  Companj-,  and  the  Chicago,  St.  Paul, 
and  Fond  Du  Lac  Company  (now  merged  in  the  Chicago  and  North- 
western Company)  constructed  a  track  on  West  Water  Street,  from  Van 
Buren  Street  north  to  Kinzie  Street,  for  the  purpose  of  forming  a  con- 
nection between  the  two  roads.  The  Pittsburgh,  Fort  Wayne,  and 
Chicago  Company  laid  the  track  from  Van  Buren  to  Randolph  Street, 
and  the  Chicago,  St.  Paul,  and  Fond  Du  Lac  Company,  that  portion 
of  the  track  from  Randolph  north  to  its  own  depot.  These  different 
portions  of  the  track  were,  however,  constructed  by  these  two  com- 
panies, by  an  arrangement  between  themselves,  the  precise  character 
of  which  does  not  appear,  but  it  is  to  be  inferred  from  the  record  that 
they  have  a  common  right  to  the  use  of  the  track  from  Van  Buren  Street 
to  Kinzie,  and  do  in  fact  use  it  in  common.  The  elevator  of  the  rela- 
tors is  situated  south  of  Randolph  Street,  and  north  of  Van  Buren,  and 
is  connected  with  the  main  track  by  a  side  track  laid  b}'  the  Pittsburgh 
Company,  at  the  request  and  expense  of  the  owners  of  the  elevator, 
and  connected  at  each  end  with  the  main  track. 


320         CHICAGO  AND   NORTHWESTEKN   RAILROAD   V.   PEOPLE. 

Since  the  10th  of  August,  1866,  the  Chicago  and  Northwestern  Com- 
pany,  in  consequence  of  certain  arrangements  and  agreements  on  and 
before  that  day  entered  into  between  the  company  and  the  owners  of 
certain  elevators,  known  as  the  Galena,  Northwestern,  Munn  &  Scott, 
Union,  City,  Munger  and  Armor,  and  Wheeler,  has  refused  to  deliver 
grain  in  bulk  to  any  elevator  except  those  above  named.  There  is  also 
in  force  a  rule  of  the  company,  adopted  in  1864,  forbidding  the  carriage 
of  grain  in  bulk,  if  consigned  to  any  particular  elevator  in  Chicago,  thus 
reserving  to  itself  the  selection  of  the  warehouse  to  which  the  grain 
should  be  delivered.  The  rule  also  provides  that  grain  in  bags  shall 
be  charged  an  additional  price  for  transportation.  This  rule  is  still  in 
force. 

The  situation  of  these  elevators,  to  which  alone  the  company  will 
deliver  grain,  is  as  follows :  The  Northwestern  is  situated  near  the 
depot  of  the  Wisconsin  division  of  the  road,  north  of  Kinzie  Street ; 
the  Munn  &  Scott  on  West  Water  Street,  between  the  elevator  of  rela- 
tors and  Kinzie  Street ;  the  Union  and  Cit}-  near  Sixteenth  Street,  and 
approached  only  by  the  track  diverging  from  the  Galena  division,  on 
the  west  side  of  the  city,  already  mentioned  ;  and  the  others  are  on  the 
east  side  of  the  north  branch  of  the  Chicago  River.  The  Munn  &  Scott 
elevator  can  be  reached  onl}-  by  the  line  laid  on  West  Water  Street, 
under  the  cit}-  ordinance  alread}'  mentioned  ;  and  the  elevator  of  rela- 
tors is  reached  in  the  same  way,  being  about  four  and  a  half  blocks 
further  south.  The  line  of  the  Galena  division  of  the  road  crosses  the 
line  on  West  Water  Street  at  nearly  a  right  angle,  and  thence  crosses 
the  North  Branch  on  a  bridge.  It  appears  by  the  return  to  the  writ, 
that  a  car  coming  into  Chicago  on  the  Galena  division,  in  order  to 
reach  the  elevator  of  relators,  would  have  to  be  taken  by  a  drawbridge 
across  the  river  on  a  single  track,  over  which  the  great  mass  of  the 
business  of  the  Galena  division  is  done,  then  backed  across  the  river 
again  upon  what  is  known  as  the  Milwaukie  division  of  respondent's 
road,  thence  taken  to  the  track  on  West  Water  Street,  and  the  cars, 
when  unloaded,  could  only  be  taken  back  to  the  Galena  division  by  a 
similar,  but  reversed,  process,  thus  necessitating  the  passage  of  the 
drawbridge,  with  only  a  single  line,  four  times,  and,  as  averred  in  the 
return  subjecting  the  company  to  great  loss  of  time  and  pecuniary 
damage  in  the  delay  that  would  be  caused  to  its  regular  trains  and 
business  on  that  division. 

This  seems  so  apparent  that  it  cannot  be  fairly  claimed  the  elevator 
of  relators  is  upon  the  line  of  the  Galena  division,  in  any  such  sense  as 
to  make  it  obligatory  upon  the  company  to  deliver  upon  West  Water 
Street  freight  coming  over  that  division  of  the  road.  The  doctrine  of 
the  Vincent  Case,  in  49  III,  was,  that  a  railway  company  must  deliver 
grain  to  any  elevator  which  it  had  allowed,  by  a  switch,  to  be  connected 
with  its  own  line.  Tliis  rule  has  been  reaffirmed  in  an  opinion  filed  at 
the  present  term,  in  the  case  of  The  People  ex  rel.  nem|)stead  v.  Tiie 
ChL  &  Alton  R.  R.  Company,  55  111.  95,  but  in  the  last  case  we  have 


CHICAGO   AND  NOETHWESTERN   RAILROAD   V.   PEOPLE.         321 

also  held  that  a  railway  company  cannot  be  compelled  to  deliver  beyond 
its  own  line  simply  because  there  are  connecting  tracks  over  which  it 
might  pass  b}'  paying  track  service,  but  which  it  has  never  made  a  part 
of  its  own  line  by  use. 

So  far  as  we  can  judge  from  this  record,  and  the  maps  showing  the 
railway  lines  and  connections,  filed  as  a  part  thereof,  the  Wisconsin 
and  Milwaukie  divisions,  running  northwest,  and  the  Galena  division, 
running  west,  though  belonging  to  the  same  corporation  and  having  a 
common  name,  are,  for  the  purposes  of  transportation,  substantially 
different  roads,  constructed  under  different  charters,  and  the  track  on 
West  Water  Street  seems  to  have  been  laid  for  the  convenience  of  the 
Wisconsin  and  Milwaukie  divisions.  It  would  be  a  harsh  and  unrea- 
sonable application  of  the  rule  announced  in  the  Vincent  Case,  and  a 
great  extension  of  the  rule  beyond  an3-thing  said  in  that  case,  if  we 
were  to  hold  that  these  relators  could  compel  the  company  to  deliver  at 
their  elevator  grain  which  has  been  transported  over  the  Galena  divi- 
sion, merely  because  the  delivery  is  physically  possible,  though  causing 
great  expense  to  the  company  and  a  great  derangement  of  its  general 
business,  and  though  the  track  on  West  Water  Street  is  not  used  by 
the  compan}'  in  connection  with  the  business  of  the  Galena  division. 

What  we  have  said  disposes  of  the  case  so  far  as  relates  to  the 
deliver}'  of  grain  coming  over  the  Galena  division  of  respondent's  road. 
As  to  such  grain,  the  mandamus  should  not  have  been  awarded. 

When,  however,  we  examine  the  record  as  to  the  connection  between 
the  relators'  elevator  and  the  Wisconsin  and  Milwaukie  divisions  of 
respondent's  road,  we  find  a  very  different  state  of  facts.  The  track  on 
West  Water  Street  is  a  direct  continuation  of  the  line  of  the  Wisconsin 
and  Milwaukie  division  ;  cars  coming  on  this  track  from  these  divisions 
do  not  cross  the  river.  The  Munn  &  Scott  elevator,  to  which  the  re- 
spondent delivers  grain,  is,  as  already  stated,  upon  a  side  track  con- 
nected with  this  track.  The  respondent  not  only  uses  this  track  to 
deliver  grain  to  the  Munn  &  Scott  elevator,  but  it  also  delivers  lumber 
and  other  freight  upon  this  track,  thus  making  it  not  only  legal)}-,  but 
actual!}',  by  positive  occupation,  a  part  of  its  road.  The  respondent, 
in  its  return,  admits  in  explicit  terms,  that  it  has  an  equal  interest  with 
the  Pittsburgh,  Fort  Wayne,  and  Chicago  Railroad  in  the  track  laid  in 
West  Water  Street.  It  also  admits  its  use ;  and  the  onl}-  allegation 
made  in  the  return  for  the  purpose  of  showing  an}'  difficulty  in  deliver- 
ing to  relators'  elevator  the  grain  consigned  thereto  from  the  Wisconsin 
and  Milwaukie  divisions,  is,  that  those  divisions  connect  with  the  line 
on  West  Water  Street  only  by  a  single  track,  and  that  respondent  can- 
not deliver  bulk  grain  or  other  freight  to  the  elevator  of  relators,  even 
from  those  divisions,  without  large  additional  expense,  caused  by  the 
loss  of  the  use  of  motive  power,  labor  of  servants,  and  loss  of  use  of 
cars,  while  the  same  are  being  delivered  and  unloaded  at  said  elevator 
and  brought  back.  As  a  reason  for  non-delivery  on  the  ground  of  diflS- 
culty,  this  is  simply  frivolous.    The  expense  caused  by  the  loss  of  the 

21 


322  CHICAGO   AND   NORTHWESTERN   RAILROAD  V.   PEOPLE. 

use  of  motive  power,  labor,  and  cars,  while  the  latter  are  being  taken 
to  their  place  of  destination  and  unloaded,  is  precisely  the  expense  for 
which  the  compan}-  is  paid  its  freight.  It  has  constructed  this  line  on 
"West  Water  Street,  in  order  to  do  the  very  work  which  it  now,  in 
general  terms,  pronounces  a  source  of  large  additional  expense ;  j'et  it 
does  not  find  the  alleged  additional  expense  an  obstacle  in  the  wa}-  of 
delivering  grain  upon  this  track  at  the  warehouse  of  Munn  &  Scott,  or 
delivering  other  freights  to  other  persons  than  the  relators.  Indeed,  it 
seems  evident,  from  the  diagrams  attached  to  the  record,  that  three  of 
the  elevators,  to  which  the  respondent  delivers  grain,  are  more  difficult 
of  access  than  that  of  the  relators,  and  three  of  tlie  otheis  have  no 
appreciable  advantage  in  that  respect,  if  not  placed  at  a  decided  dis- 
advantage by  the  fact  that  they  can  be  reached  onh*  by  crossing  the 
river. 

We  presume,  however,  from  the  argument  that  the  respondent's 
counsel  place  no  reliance  upon  this  allegation  of  additional  expense,  so 
far  as  the  Wisconsin  and  Milwaukie  divisions  are  concerned.  They 
rest  the  defence  on  the  contracts  made  between  the  compan\'  and  the 
elevators  above  named,  for  exclusive  delivery  to  the  latter  to  the  extent 
of  their  capacit}.  This  brings  us  to  the  most  important  question  in  the 
case.  Is  a  contract  of  this  character  a  valid  excuse  to  the  company  for 
refusing  to  deliver  grain  to  an  elevator,  upon  its  lines  and  not  a  party 
to  the  contract,  to  which  such  grain  has  been  consigned  ? 

In  the  oral  argument  of  this  case  it  was  claimed,  by  counsel  for  the 
respondent,  that  a  railwav  company  was  a  mere  private  corporation, 
and  that  it  was  the  right  and  duty  of  its  directors  to  conduct  its  busi- 
ness merely  with  reference  to  the  pecuniary  interests  of  the  stockholders. 
The  printed  arguments  do  not  go  to  this  extent,  in  terms,  but  they  are 
colored  throughout  by  the  same  idea,  and  in  one  of  them  we  find  coun- 
sel applying  to  the  Supreme  Court  of  the  United  States,  and  the  Supreme 
Court  of  Pennsylvania,  language  of  severe,  and  almost  contemptuous, 
disparagement,  because  those  tribunals  have  said  that  "  a  common  car- 
rier is  in  the  exercise  of  a  sort  of  public  office."  N.  J.  Steam  Nav.  Co. 
V.  Merch.  Bank,  6  How.  381  ;  Sanford  v.  Railroad  Co.,  24  Pa.  380.  If 
the  language  is  not  criticall}'  accurate,  perhaps  we  can  pardon  these 
courts,  when  we  find  that  substantially  the  same  language  was  used 
by  Lord  Holt,  in  Coggs  v.  Bernard,  2  Ix)rd  Raymond,  909,  the  leading 
case  in  all  our  books  on  the  subject  of  bailments.  The  language  of  that 
case  is,  that  the  common  carrier  "  exercises  a  public  employment." 

We  shall  engage  in  no  discussion  in  regard  to  names.  It  is  immate- 
rial whether  or  not  these  corporations  can  be  properly  said  to  be  in  the 
exercise  of  "  a  sort  of  public  office,"  or  whether  the^'  are  to  be  styled 
private,  or  quasi  public  corporations.  Certain  it  is,  that  the}'  owe 
some  important  duties  to  the  public,  and  it  only  concerns  us  now  to 
ascertain  the  extent  of  these  duties  as  regards  the  case  made  upon  this 
record. 

It  is  admitted  by  respondent's  counsel  that  railway  companies  arc 


CHICAGO   AND   NORTHWESTERN   RAILROAD   V.   PEOPLE.  323 

common  carriers,  though  even  that  admission  is  somewhat  grudgingly 
made.  Regarded  merely  as  a  common  carrier  at  common  law,  and  in- 
dependently of  any  obligations  imposed  by  the  acceptance  of  its  charter, 
it  would  owe  important  duties  to  the  public,  from  which  it  could  not 
release  itself,  except  with  the  consent  of  every  person  who  might  call 
upon  it  to  perform  them.  Among  these  duties,  as  well  defined  and 
settled  as  anything  in  the  law,  was  the  obligation  to  receive  and  carry 
goods  for  all  persons  alike,  without  injurious  discrimination  as  to 
terms,  and  to  deliver  them  in  safety  to  the  consignee,  unless  prevented 
b}^  the  act  of  God  or  the  public  enemy.  These  obligations  grew  out  of 
the  relation  voluntarily  assumed  by  the  carrier  toward  the  public,  and 
the  requirements  of  public  policy,  and  so  important  have  the}'  been 
deemed  that  eminent  judges  have  often  expressed  their  regret  that 
common  carriers  have  ever  been  permitted  to  vary  their  common-law 
liabilit}',  even  by  a  special  contract  with  the  owner  of  the  goods. 

Regarded,  then,  merely  as  a  common  carrier  at  common  law,  the 
respondent  should  not  be  permitted  to  say  it  will  deliver  goods  at  the 
warehouse  of  A  and  B,  but  will  not  deliver  at  the  warehouse  of  C, 
the  latter  presenting  equal  facilities  for  the  discharge  of  freight,  and 
being  accessible  on  respondent's  line. 

But  railway  companies  ma}'  well  be  regarded  as  under  a  higher 
obligation,  if  that  were  possible,  than  that  imposed  by  the  common 
law,  to  discharge  their  duties  to  the  public  as  common  carriers  fairly 
and  impartiall}'.  As  has  been  said  by  other  courts,  the  State  has 
endowed  them  with  something  of  its  own  sovereignty,  in  giving  them 
the  right  of  eminent  domain.  Bj-  virtue  of  this  power  they  take  the 
lands  of  the  citizen  against  his  will,  and  can,  if  need  be,  demolish  his 
house.  Is  it  supposed  these  great  powers  were  granted  merely  for  the 
private  gain  of  the  corporators?  On  the  contrary,  we  all  know  the 
companies  were  created  for  the  public  good. 

The  object  of  the  legislature  was  to  add  to  the  means  of  travel  and 
commerce.  If,  then,  a  common  carrier  at  common  law  came  under 
obligations  to  the  public  from  which  he  could  not  discharge  himself  at 
his  own  volition,  still  less  should  a  railway  company  be  permitted  to  do 
so,  when  it  was  created  for  the  public  benefit,  and  has  received  from 
the  public  such  extraordinary'  privileges.  Railway  charters  not  only 
give  a  perpetual  existence  and  great  power,  but  they  have  been  con- 
stantly recognized  b}-  the  courts  of  this  country  as  contracts  between 
the  companies  and  the  State,  imposing  reciprocal  obligations. 

The  courts  have  alwa^-s  been,  and  we  trust  always  will  be,  read}-  to 
protect  these  companies  in  their  chartered  rights,  but,  on  the  other 
hand,  we  should  be  equally-  ready  to  insist  that  the}'  perform  faithfulh" 
to  the  public  those  duties  which  were  the  object  of  their  chartered 
powers. 

We  are  not,  of  course,  to  be  understood  as  sa3:ing  or  intimating  that 
the  legislature,  or  the  courts,  may  require  from  a  railwaj'  company'  the 
performance  of  any  and  all  acts  that  might  redound  to  the  public  benefit, 


324  CHICAGO   AND   NORTHWESTERN   RAILROAD  V.   PEOPLE. 

without  reference  to  the  pecuniar}-  welfare  of  the  company  itself.  We 
hold  simply  that  it  must  perform  all  those  duties  of  a  common  carrier 
to  which  it  knew  it  would  be  liable  when  it  sought  aqd  obtained  its 
charter,  and  the  fact  that  the  public  has  bestowed  upon  it  extraordi- 
nary powers  is  but  an  additional  reason  for  holding  it  to  a  complete 
performance  of  its  obligations. 

The  duty  sought  to  be  enforced  in  this  proceeding  is  the  deliver}'  of 
grain  in  bulk  to  the  warehouse  to  which  it  is  consigned,  such  warehouse 
being  on  the  line  of  the  respondent's  road,  with  facilities  for  its  delivery 
equal  to  those  of  the  other  warehouses  at  which  the  company  does 
deliver,  and  the  carriage  of  grain  in  bulk  being  a  part  of  its  regular 
business.  This,  then,  is  the  precise  question  decided  in  the  Vincent 
Case,  in  49  111.,  and  it  is  uunecessar}-  to  repeat  what  was  there  said. 
We  may  remark,  however,  that,  as  the  argument  of  counsel  necessaril}' 
brought  that  case  under  review,  and  as  it  was  decided  before  the  re- 
organization of  this  court  under  the  new  constitution,  the  court  as  now 
constituted  has  re-examined  that  decision,  and  full}'  concurs  therein. 
That  case  is  really  decisive  of  the  present,  so  far  as  respects  grain 
transported  on  the  Wisconsin  and  Milwaukie  divisions  of  respondent's 
road.  The  only  difference  between  this  and  the  Vincent  Case  is  in 
the  existence  of  the  contract  for  exclusive  delivery  to  the  favored  ware- 
houses, and  this  contract  can  have  no  effect  when  set  up  against  a 
person  not  a  party  to  it,  as  an  excuse  for  not  performing  toward  such 
person  those  duties  of  a  common  carrier  prescribed  by  the  common  law, 
and  declared  by  the  statute  of  the  State. 

The  contract  in  question  is  peculiarly  objectionable  in  its  character, 
and  peculiarly  defiant  of  the  obligations  of  the  respondent  to  the  public 
as  a  common  carrier.  If  the  principle  implied  in  it  were  conceded,  the 
railway  companies  of  the  State  might  make  similar  contracts  with  indi- 
viduals at  every  important  point  upon  their  lines,  and  in  regard  to  other 
articles  of  commerce  besides  grain,  and  thus  subject  the  business  of  the 
State  almost  wholly  to  their  control,  as  a  means  of  their  own  emolument. 
Instead  of  making  a  contract  with  several  elevators,  as  in  the  present 
case,  each  road  that  enters  Chicago  might  contract  with  one  alone, 
and  thus  give  to  the  owner  of  such  elevator  an  absolute  and  complete 
monopoly  in  the  handling  of  all  the  grain  that  might  be  transported 
over  such  road.  So,  too,  at  every  important  town  in  the  interior,  each 
road  might  contract  that  all  the  lumber  carried  by  it  should  be  con- 
signed to  a  particular  yard.  How  injurious  to  the  public  would  be  the 
creation  of  such  a  system  of  organized  monopolies  in  the  most  important 
articles  of  commerce,  claiming  existence  under  a  perpetual  charter  from 
the  State,  and,  by  the  sacredness  of  such  charter,  claiming  also  to  set 
the  legislative  will  itself  at  defiance,  it  is  hardly  worth  while  to  specu- 
Tate.  It  would  be  difficult  to  exaggerate  the  evil  of  which  such  a 
system  would  be  the  cause,  when  fully  developed,  and  managed  by 
unscrupulous  hands. 

Can  it  be  seriously  doubted  whether  a  contract,  involving  such  a 


CHICAGO  AND   NORTHWESTEKN  KAILROAD  V.    PEOPLE.  325 

principle,  and  such  results,  is  in  conflict  with  the  duties  which  the 
company  owes  to  the  public  as  a  common  carrier?  The  fact  that  a 
contract  has  been  made  is  really  of  no  moment,  because,  if  the  com- 
pany can  bind  the  public  by  a  contract  of  this  sort,  it  can  do  the  same 
thing  by  a  mere  regulation  of  its  own,  and  say  to  these  relators  that  it 
will  not  deliver  at  their  warehouse  the  grain  cons'i?ned  to  them,  because 
it  prefers  to  deliver  it  elsewhere.  The  contract,  if  vicious  in  itself,  so 
far  from  excusing  the  road,  only  shows  that  the  policy  of  delivering 
grain  exclusively  at  its  chosen  warehouses  is  a  deliberate  policy,  to  be 
followed  for  a  term  of  3'ears,  during  which  these  contracts  run. 

It  is,  however,  urged  very  strenuously  by  counsel  for  the  respondent, 
that  a  common  carrier,  in  the  absence  of  contract,  is  bound  to  carry  and 
deliver  only  according  to  the  custom  and  usage  of  his  business ;  that  it 
depends  upon  himself  to  establish  such  custom  and  usage ;  and  that 
the  respondent,  never  having  held  itself  out  as  a  carrier  of  grain  in 
bulk,  except  upon  the  condition  that  it  ma}'  itself  choose  the  consignee, 
this  has' become  the  custom  and  usage  of  its  business,  and  it  cannot  be 
required  to  go  beyond  this  limit.  In  answer  to  this  position,  the  fact 
that  the  respondent  has  derived  its  life  and  powers  from  the  people, 
through  the  legislature,  comes  in  with  controlling  force.  Admit,  if  the 
respondent  were  a  private  association,  which  had  established  a  line  of 
wagons,  for  the  purpose  of  carrying  grain  from  the  Wisconsin  boundary 
to  the  elevator  of  Munn  &  Scott  in  Chicago,  and  had  never  offered  to 
carry  or  deliver  it  elsewhere,  that  it  could  not  be  compelled  to  depart 
from  the  custom  or  usage  of  its  trade.  Still  the  admission  does  not 
aid  the  respondent  in  this  case.  In  the  case  supposed,  the  carrier 
would  establish  the  terminal  points  of  his  route  at  his  own  discretion, 
and  could  change  them  as  his  interests  might  demand.  He  offers  him- 
self to  the  public  only  as  a  common  carrier  to  that  extent,  and  he  can 
abandon  his  first  line  and  adopt  another  at  his  own  volition.  If  he 
should  abandon  it,  and,  instead  of  offering  to  carrj'  grain  only  to  the 
elevator  of  Munn  &  Scott,  should  offer  to  carry  it  generally  to  Chicago, 
then  he  would  clearly  be  obliged  to  deliver  it  to  any  consignee  in 
Chicago,  to  whom  it  might  be  sent  and  to  whom  it  could  be  delivered, 
the  place  of  delivery  being  upon  his  line  of  carriage. 

In  the  case  before  us,  admitting  the  position  of  counsel  that  a  com- 
mon carrier  establishes  his  own  line  and  terminal  points,  the  question 
arises,  at  what  time  and  how  does  a  railway  company  establish  them  ? 
We  answer,  when  it  accepts  from  the  legislature  the  charter  which 
gives  it  life,  and  by  virtue  of  such  acceptance.  That  is  the  point  of 
time  at  which  its  obligations  begin.  It  is  then  that  it  holds  itself  out 
to  the  world  as  a  common  carrier,  whose  business  will  begin  as  soon 
as  the  road  is  constructed  upon  the  line  which  the  charter  has  fixed. 
Suppose  this  respondent  had  asked  from  the  legislature  a  charter  au- 
thorizing it  to  carr}'  grain  in  bulk  to  be  delivered  only  at  the  elevator 
of  Munn  &  Scott,  and  nowhere  else  in  the  city  of  Chicago.  Can  an}' 
one  suppose  such  charter  would  have  been  granted  ?    The  supposition  is 


326  CHICAGO   AND    NORTHWESTERN   RAILROAD    V.    PEOPLE. 

preposterous.  But,  instead  of  a  charter  making  a  particular  elevator  the 
terminus  and  place  of  delivery,  the  legislature  granted  one  which  made 
the  city  of  Chicago  itself  the  terminus,  and  when  this  charter  was  ac- 
cepted there  at  ouce  arose,  on  the  part  of  the  respondent,  the  corre- 
sponding obligation  to  deliver  grain  at  any  point  within  the  city  of 
Chicago,  upon  its  lines,  with  suitable  accommodations  for  receiving  it, 
to  which  such  grain  might  be  consigned.  Perhaps  grain  in  bulk  was 
not  then  carried  in  cars,  and  elevators  may  not  have  been  largely  intro- 
duced. But  the  charter  was  granted  to  promote  the  conveniences  of 
commerce,  and  it  is  the  constant  duty  of  the  respondent  to  adapt  its 
agencies  to  that  end.  When  these  elevators  were  erected  in  Chicago, 
to  which  the  respondent's  line  extended,  it  could  onl}-  carry  out  the 
obligations  of  its  charter  by  receiving  and  delivering  to  each  elevator 
whatever  grain  might  be  consigned  to  it,  and  it  is  idle  to  saj'  such 
obligation  can  be  evaded  b}'  tlie  claim  that  such  delivery  has  not  been 
the  custom  or  usage  of  respondent.  It  can  be  permitted  to  establish 
no  custom  inconsistent  with  the  spirit  and  object  of  its  charter. 

It  is  claimed  by  counsel  that  the  charter  of  respondent  authorizes  it 
to  make  such  contracts  and  regulations  as  might  be  necessar}*  in  the 
transaction  of  its  business.  But  certainl}'  we  cannot  suppose  the  legis- 
lature intended  to  authorize  the  making  of  such  rules  or  contracts  as 
would  defeat  the  very  object  it  liad  in  view  in  granting  the  charter. 
The  company  can  make  such  rules  and  contracts  as  it  pleases,  not  in- 
consistent with  its  duties  as  a  common  carrier,  but  it  can  go  no  further, 
and  any  general  language  which  its  charter  may  contain  must  neces- 
sarily be  construed  with  that  limitation.  In  the  case  of  The  Cit\-  of 
Chicago  V.  Rumpff,  45  111.  94,  this  court  held  a  clause  in  the  charter, 
giving  the  common  council  the  right  to  control  and  regulate  the  business 
of  slaughtering  animals,  did  not  authorize  the  city  to  create  a  monopoly 
of  the  business,  under  pretence  of  regulating  and  controlling  it. 

It  is  unnecessar}'  to  speak  particularly  of  the  rule  adopted  by  the 
company  in  reference  to  the  transportation  of  grain.  What  we  have 
said  in  regard  to  the  contract  applies  equally  to  the  rule. 

The  principle  that  a  railroad  company  can  make  no  injurious  or 
arbitrary  discrimination  between  individuals  in  its  dealings  with  the 
public,  not  only  commends  itself  to  our  reason  and  sense  of  justice,  but 
is  sustained  by  adjudged  cases.  In  England,  a  contract  which  admitted 
to  the  door  of  a  station,  within  the  yard  of  a  railway  company,  a  certain 
omnibus,  and  excluded  another  omnibus,  was  held  void.  Marriot  v. 
L.  &  S.  W.  R.  R.  Co.,  1  C.  B.  (N.S.),  498. 

In  Gaston  v.  Bristol  &  Exeter  Railroad  Company,  6  C.  B.  (N.  S.)  641, 
it  was  held,  that  a  contract  with  certain  ironmongers,  to  carry  their 
freight  for  a  less  price  than  that  charged  the  public,  was  illegal,  no 
good  reason  for  the  discrimination  being  shown. 

In  Crouch  v.  The  L.  &  N.  W.  R.  Co.,  14  C.  B.  254,  it  was  held  a  rail- 
way company  could  not  make  a  regulation  for  the  conveyance  of 
goods  which,  in  practice,  affected  one  individual  only. 


CHICAGO  AND   NORTHWESTERN   RAILROAD   V.    PEOPLE.  327 

In  Sandford  v.  Railroad  Company,  24  Pa.  382,  the  court  held  that 
the  power  given  in  the  charter  of  a  railway  company  to  regulate  the 
transportation  of  the  road  did  not  give  the  right  to  grant  exclusive 
privileges  to  a  particular  express  company.  The  court  sa}',  "If  the 
company  possessed  this  power,  it  might  build  up  one  set  of  men  and 
destroy  others  ;  advance  one  kind  of  business  and  break  down  another, 
and  make  even  religion  and  politics  the  tests  in  the  distribution  of  its 
favors.  The  rights  of  the  people  are  not  subject  to  any  such  corporate 
control." 

We  refer  also  to  Rogers*  Locomotive  Works  v.  Erie  R.  R.  Co.,  5 
Green,  380,  and  State  v.  Hartford  &  N.  H.  R.  Co.,  29  Conn.  538. 

It  is  insisted  by  counsel  for  the  respondent  that,  even  if  the  relators 
have  just  cause  of  complaint,  they  cannot  resort  to  the  writ  of  manda- 
mus. We  are  of  opinion,  however,  that  thej'  can  have  an  adequate 
remedy  in  no  other  wa}',  and  that  the  writ  will  therefore  lie. 

The  judgment  of  the  court  below  awarding  a  peremptory  mandamus 
must  be  reversed,  because  it  applies  to  the  Galena  division  of  respon- 
dent's road,  as  well  as  to  the  Wisconsin  and  Milwaukie  divisions.  If 
it  had  applied  only  to  the  latter,  we  should  have  afBrraed  the  judgment. 
The  parties  have  stipulated  that,  in  case  of  reversal,  the  case  shall  be 
remanded,  with  leave  to  the  relators  to  traverse  the  return.  We  there- 
fore make  no  final  order,  but  remand  the  case,  with  leave  to  both  parties 
to  amend  their  pleadings,  if  desired,  in  view  of  what  has  been  said  in 
this  opinion.  Judgment  reversed. 


328      LOUISVILLE  AND   NASHVILLE   R.R.   CO.   V.   CENT.    STOCK.    CO. 


LOUISVILLE  &  NASHVILLE  RAILROAD  CO^^PANY  v. 
CENTRAL  STOCKYARDS  COMPANY. 

Supreme  Court  of  the  United  States,  1909. 

[212   U.  S.  132.1] 

The  facts  are  stated  in  the  opinion.  Mr.  Justice  Holmes  delivered 
the  opinion  of  the  court. 

It  was  argued,  however,  that  the  requirement  that  the  plaintiff  in 
error  should  deliver  its  own  cars  to  another  road  was  void  under  the 
Fourteenth  Amendment  as  an  unlawful  taking  of  its  propert}'.  In  view 
of  the  well  known  and  necessary  practice  of  connecting  roads,  we  are 
far  from  saying  that  a  valid  law  could  not  be  passed  to  prevent  the  cost 
and  loss  of  time  entailed  by  needless  transshipment  or  breaking  bulk, 
in  case  of  an  unreasonable  refusal  by  a  carrier  to  interchange  cars  with 
another  for  through  traflSc.  We  do  not  pass  upon  the  question.  It  is 
enough  to  observe  that  such  a  law  perhaps  ought  to  be  so  limited  as  to 
respect  the  paramount  needs  of  the  carrier  concerned,  and  at  least  could 
be  sustained  only  with  full  and  adequate  regulation  for  his  protection 
from  the  loss  or  undue  detention  of  cars,  and  for  securing  due  compen- 
sation for  their  use.  The  constitution  of  Kentucky  is  simply  a  universal, 
undiscriminating  requirement,  with  no  adequate  provisions  such  as  we 
have  described.  The  want  cannot  be  cured  by  inserting  them  in  judg- 
ments under  it.  The  law  itself  must  save  the  parties'  rights,  and  not 
leave  them  to  the  discretion  of  the  courts  as  such.  See  Security  Trust 
&  Safety  Vault  Co.  v.  Lexington,  203  U.  S.  323,  333;  Roller  v.  Holly, 
176  U.  S.  398,  409  ;  Connecticut  River  R.  R.  Co.  v.  County  Commis- 
sioners, 127  Massachusetts,  50,  57;  Ash  v.  Cummings,  50  N.  H.  591 ; 
Moody  V.  Jacksonville,  Tampa  &  Key  West  R.  R.  Co.,  20  Florida, 
597;  Ex  parte  M.&rt[n,  13  Arkansas,  198;  St.  Louis  v.  Hill,  116  Mis- 
souri, 527.  It  follows  that  the  requirement  of  the  state  constitution 
cannot  stand  alone  under  the  Fourteenth  Amendment,  and  that  the 
judgment  in  this  respect  also,  being  based  upon  it,  must  fall.  We  do 
not  mean,  however,  that  the  silence  of  the  constitution  might  not  be 
remedied  by  an  act  of  legislature  or  a  regulation  bj*  a  duly  authorized 
subordinate  body  if  such  legislation  should  be  held  consistent  with  the 
state  constitution  by  the  state  court.  We  should  add  that  the  require- 
ment in  the  first  part  of  the  judgment,  which  we  have  been  discussing, 
is  open  to  the  objections  mentioned  in  the  former  decision  so  far  as  it 
practically  requires  the  Louisville  and  Nashville  Railroad  to  deliver 
cars  at  Louisville  elsewhere  than  at  its  own  terminus.  192  U.  S.  570, 
671. 

1  Onlj  one  point  is  printed.  —  Ed. 


MAYS   V.    SEABOARD    AIR   LINE    RAILWAY.  329 


MAYS   u.    SEABOARD   AIR  LINE    RAILWAY. 
Supreme  Court  of  South  Carolina,  1906. 

[75  S.  C.  455.J] 

Mr.  Chief  Justice  Pope.  Thus,  we  see  both  by  the  Federal  and 
State  Constitutions  that  full  protection  is  herein  provided  against  any 
infraction  of  the  rights  of  citizens.  This  should  be  so.  Any  disregard 
of  these  constitutional  provisions  aims  a  death  blow  at  the  preservation 
of  private  rights,  and  it  falls  to  the  lot  of  the  courts  to  uphold  and  pro- 
tect these  provisions  of  law.  A  corporation  in  the  eyes  of  the  law  is  a 
private  individual  so  far  as  property  rights  are  concerned.  In  this 
instance,  the  defendant  railroad  has  already'  had  measured  to  it  under 
the  law  its  right  to  maintain  its  property  rights  in  its  tracks,  in  its 
engines  and  other  property,  and  its  franchises  laid  out  and  measured 
and  admitted.  By  this  act  of  the  Legislature  it  is  sought  to  confer 
upon  a  private  individual  the  right,  within  the  distance  of  one-half  mile, 
to  require  this  railway  company  to  connect  its  railway  track  with  a 
private  brick  mill  against  the  railway  company's  consent.  It  is  re- 
quired by  this  act  that  the  railroad  shall  lay  out  a  track  from  its  line 
of  railway  to  the  brick  mill  of  the  plaintiff.  It  is  true,  that  the  act 
provides  that  the  plaintiff  shall  pa}'  the  costs  of  trackage,  but  this, 
ever}'  dollar  of  it,  must  be  returned  by  the  railroad  to  the  owner  of  the 
brick  mill  in  instalments  of  twenty  per  cent,  each  for  five  successive 
years,  thus  taking  from  the  railroad's  pocket  money  which  it  has  al- 
ready earned.  If  this  is  not  an  infraction  of  law,  what  is  it?  Thus  it 
violates  the  requirements  of  our  Federal  and  State  Constitutions.  While 
the  Legislature  is  empowered  to  alter  or  amend  the  charter  of  the  de- 
fendant, it  is  imperative  upon  it  to  respect  the  property  of  defendant 
under  the  guarantees  of  the  Constitution  in  so  doing.  Subdivision 
(a),  therefore,  must  be  overruled. 

1  The  principal  point  is  printed.  —  Ed. 


330  RALSTON  BUSINESS  MEN's  ASSOCIATION  V.   BUSH. 


RALSTON  BUSINESS  MEN'S  ASSOCIATION  v.  BUSH. 
Supreme  Court  of  Nebraska,  1918. 

[167  Northwestern  Reporter,  727.] 

Rose,  J.  The  Nebraska  State  Railway  Commission  ordered  de- 
fendant to  provide  at  the  village  of  Ralston  a  station  and  other  ship- 
ping facilities  near  the  intersection  of  Seventy-Seventh  street  and  the 
Missouri  Pacific  Railway  track.  The  case  is  presented  here  upon  an 
appeal  by  defendant. 

Three-fourths  of  a  mile  from  the  industrial  part  of  Ralston  defendant 
has  a  building  and  a  team  track.  The  Chicago,  Burhngton  &  Quincy 
Railroad  Company  has  a  station  at  the  village  itself,  where  three  em- 
ployes are  engaged  in  the  railway  service.  The  sufficiency  of  existing 
shipping  facilities  and  the  necessity  for  improvements  were  contro- 
verted issues. 

On  appeal  the  decision  of  the  Nebraska  State  Railway  Commission 
is  challenged  as  unreasonable.  The  order  was  made  before  the  United 
States  engaged  in  the  present  war.  As  a  mifitary  measure  the  federal 
government  is  now  controlHng  defendant's  railway  system.  The  en- 
forcement of  the  order  challenged  on  appeal  will  require  labor,  mate- 
rials, and  money.  Owing  to  the  exigencies  of  war,  the  government  is 
making  extraordinary  demands  for  funds,  men,  materials,  and  rail- 
road equipment.  Defendant's  fines  of  railroad  transportation  are  con- 
necting links  between  a  granary  of  the  nation  and  millions  of  men 
now  engaged  in  the  common  defence.  In  this  emergency  the  general 
welfare  should  be  considered  in  adjusting  between  private  suitors 
controversies  involving  expenditures  for  the  improvement  of  local 
railroad  facifities.  When  the  order  was  made  there  was  no  occasion 
or  opportunity  to  present  or  consider  these  features  of  the  questions 
presented  by  the  appeal.  The  new  situation  grew  out  of  facts  re- 
quiring the  judicial  notice  of  the  appellate  court.  The  Nebraska 
State  Railway  Commission  should  have  an  opportunity  for  further 
inquiry  in    view  of   changed  conditions.     To  that    end,  following 

Marshall  v.  Bush,  102  Neb. ,  167  N.  W.  59,  the  order  chafienged 

by  defendant  is  vacated,  and  the  proceeding  remanded  to  the  Ne- 
braska State  Railway  Commission  for  further  consideration. 

Reversed  and  remanded, 

Letton,  J.,  not  sitting. 


PENNSYLVANIA   RAILROAD   CO.   V.   SONMAN   SHAFT  COAL  CO.      331 


PENNSYLVANIA  RAILROAD  COMPANY  v.  SONMAN 
SHAFT  COAL  COMPANY. 

Supreme  Court  of  the  United  States,  1916. 

[242  U.  S.  120.1] 

Mr.  Justice  Van  Devanter  delivered  the  opinion  of  the  court. 

Upon  the  trial  the  carrier  offered  to  prove  by  a  witness  then  under 
examination  ..."  that  during  all  of  the  period  of  this  action  the  de- 
fendant had  in  effect  .  .  .  through  routes  and  joint  rates  to  points 
outside  the  State  of  Pennsylvania  on  the  lines  of  other  common  car- 
riers; that  it  was  obliged  to  permit  cars  loaded  by  its  shippers  with 
bituminous  coal  consigned  to  such  points  outside  the  State  of  Penn- 
sylvania to  go  through  to  destination,  even  when  on  the  lines  of  other 
railroad  companies;  that  as  a  result  of  doing  this  it  had  continuously 
throughout  the  period  of  this  action  a  large  number  of  cars  off  its  own 
lines  and  on  the  lines  of  other  common  carriers,  which  cars  would  other- 
wise have  been  available  for  shippers  of  coal  on  the  railroad  lines  of  the 
defendant  and  these  cars  if  not  on  other  railroad  Unes  would  have  in- 
creased the  equipment  available  for  distribution  to  the  plaintiff's  mine 
and  would  consequently  have  diminished  the  damage  which  plaintiff 
claims  to  have  sustained  by  reason  of  the  fact  that  it  did  not  receive 
more  cars  than  it  did  receive." 

But  on  the  coal  company's  objection  the  evidence  was  excluded. 
We  think  the  ruling  was  right.  The  offer  did  not  point  to  any  unusual 
or  abnormal  condition,  not  reasonably  to  have  been  foreseen,  but,  on 
the  contrary,  to  a  situation  which  was  described  as  continuous  through- 
out the  four  year  period  to  which  the  action  relates.  It  did  not  indi- 
cate that  this  condition  was  even  peculiar  to  that  period,  or  was  caused 
by  an  extraordinary  volume  of  coal  traffic  or  an  unusual  detention  of 
cars  on  other  lines  of  railroad,  or  that  it  was  other  than  a  normal  in- 
cident of  the  coal  transportation  in  which  the  carrier  was  engaged. 
Without  doubt  the  cars  of  this  carrier  when  loaded  with  coal  often 
went  forward  to  destinations  on  the  lines  of  other  carriers.  It  is  com- 
mon knowledge  that  coal  transportation  has  been  conducted  quite 
generally  in  this  way  for  many  years.  Besides,  a  carrier  extensively 
engaged  in  such  transportation  from  mines  along  its  lines,  as  this  one 
was,  naturally  would  expect  to  have^a  considerable  number  of  cars  on 
other  lines  in  the  ordinary  course  of  business. 

Judgment  affirmed. 

*  Part  of  the  opiniou  dealing  with  another  question  is  omitted.  —  Ed. 


i32  LOS  ANGELES  SWITCHING  CASE. 


LOS  ANGELES  SWITCHING  CASE. 
Supreme  Court  of  the  United  States,  1914. 

[234  U.  S.  294.1] 

Mr.  Justice  Hughes  delivered  the  opinion  of  the  court. 

On  the  other  hand,  it  cannot  be  maintained  that  the  delivery 
and  receipt  of  goods  on  industrial  spur  tracks  within  the  switching 
limits  in  a  city  is  necessarily  an  added  service  for  which  the  carrier  is 
entitled  to  make,  or  should  make,  a  charge  additional  to  the  line-haul 
rate  to  or  from  that  city,  when  the  line-haul  rate  embraces  a  receiving 
and  delivering  service  for  which  the  spur-track  service  is  a  substitute. 
It  is  said  that  carriers  are  bound  to  carry  only  to  or  from  their  ter- 
minal stations.  But  when  industrial  spiu*  tracks  have  been  established 
within  the  carrier's  switching  limits,  within  which  also  various  team 
tracks  are  located,  these  spurs  may  in  fact  constitute  an  essential  part 
of  the  carrier's  terminal  system.  It  was  stated  by  the  Commission 
that  carriers  throughout  the  country  treat  industry  spurs  of  the  kind 
here  in  question  *as  portions  of  their  terminals,  making  no  extra 
charge  for  service  thereto  when  the  carrier  receives  the  benefit  of  the 
line  haul  out  or  in.'  It  was  added  that  while  this  general  statement 
covered  perhaps  ten  thousand  cities  and  towns  in  the  United  States, 
the  carriers  before  the  Commission  could  name  only  three  exceptions, 
to  wit,  the  cities  of  Los  Angeles,  San  Francisco  and  San  Diego.  But, 
laying  the  generalization  on  one  side,  it  is  plain  that  the  question 
whether  or  not  there  is  at  any  point  an  additional  service  in  connec- 
tion with  industrial  spur  tracks  upon  which  to  base  an  extra  charge,  or 
whether  there  is  merely  a  substituted  service  which  is  substantially  a 
like  service  to  that  included  in  the  Une-haul  rate  and  not  received,  is  a 
question  of  fact  to  be  determined  according  to  the  actual  conditions 
of  operation. 

Such  a  question  is  manifestly  one  upon  which  it  is  the  province  of 
the  Commission  to  pass. 

*  Only  one  point  is  printed.  —  Ed. 


TAP  LINE  CASES.  333 

TAP  LINE  CASES. 
Supreme  Court  of  the  United  States,  1914. 

[234  U.  S.  1.1]  , 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

As  we  have  said,  the  Commission  by  its  order  herein  required  the 
trunk  Hnes  to  reestabhsh  through  routes  and  joint  rates  as  to  property 
to  be  transported  by  others  than  the  proprietary  owners  over  the  tap 
hnes.  This  order  would  of  itself  create  a  discrimination  against  pro- 
prietary owners,  for  lumber  products  are  carried  from  this  territory 
upon  blanket  rates  applicable  to  all  within  its  limits.  It  follows  that 
independent  owners  would  get  this  blanket  rate  for  the  entire  haul  of 
their  products  while  proprietary  bwners  would  pay  the  same  rate  plus 
the  cost  of  getting  to  the  trunk  line  over  the  tap  line.  The  Commis- 
sion, by  the  effect  of  its  order,  recognizes  that  raihoads  organized  and 
operated  as  these  tap  lines  are,  if  owned  by  others  than  those  who 
own  the  timber  and  mills,  would  be  entitled  to  be  treated  as  common 
carriers  and  to  participate  in  joint  rates  with  other  carriers.  We 
think  the  Commission  exceeded  its  authority  when  it  condemned  these 
roads  as  a  mere  attempt  to  evade  the  law  and  to  secure  rebates  and 
preferences  for  themselves. 

Because  we  reach  the  conclusion  that  the  tap  lines  involved  in  these 
appeals  are  common  carriers,  as  well  of  proprietary  as  non-proprietary 
traffic,  and  as  such  entitled  to  participate  in  joint  rates  with  other 
common  carriers  that  determination  falls  far  short  of  deciding,  indeed 
does  not  at  all  decide,  that  the  division  of  such  joint  rates  may  be 
made  at  the  will  of  the  carriers  involved  and  without  any  power  of 
the  Commission  to  control.  That  body  has  the  authority  and  it  is  its 
duty  to  reach  all  unlawful  discriminatory  practices  resulting  in  favorit- 
ism and  unfair  advantages  to  particular  shippers  or  carriers.  It  is 
not  only  withip  its  power  but  the  law  makes  it  the  duty  of  the  Com- 
mission to  make  orders  which  shall  nullify  such  practices  resulting  in 
rebating  or  preferences,  whatever  form  they  take  and  in  whatsoever 
guise  they  may  appear.  If  the  divisions  of  joint  rates  are  such  as  to 
amount  to  rebates  or  discriminations  in  favor  of  the  owners  of  the  tap 
lines  because  of  their  disproportionate  amount  in  view  of  the  service 
rendered,  it  is  within  the  province  of  the  Commission  to  reduce  the 
amount  so  that  a  tap  line  shall  receive  just  compensation  only  for 
what  it  actually  does. 

For  the  reasons  stated,  we  think  the  Commerce  Coiu't  did  not  err 
in  reaching  its  conclusion  and  decision,  and  its  judgment  is 

Affi,fmed. 
*  Only  the  conclusion  of  the  opinion  is  printed.  —  Ed. 


334      CHICAGO,   ETC.   RY.   CO.   V.   MINN.   CIVIC   &   COMMERCE  ASSOC. 


CHICAGO,  MILWAUKEE  &  ST.  PAUL  RAILWAY  CO.  v. 
MINNEAPOLIS  CIVIC  &  COMMERCE  ASSOCIATION. 

Supreme  Court  of  the  United  States,  1918. 

[247  U.  S.  490.'] 

Mr.  Justice  Clarke  delivered  the  opinion  of  the  court. 

Satisfied  as  we  are  by  the  evidence  that  the  Eastern  Company  is  a 
completely  controlled  agency  of  the  two  companies  which  own  its 
capital  stock,  we  agree  with  the  Supreme  Court  of  Minnesota  that  the 
fact  that  the  legal  title  to  what  are  obviously  terminal  or  spur  delivery 
tracks  is  in  the  Eastern  Company  should  not  be  permitted  to  become 
the  warrant  for  permitting  a  charge  upon  shippers  greater  than  they 
would  be  required  to  pay  if  that  title  were  in  the  owning  companies. 
The  order  of  the  Commission  affirmed  by  the  Supreme  Court  of  Min- 
nesota, so  far  from  being  arbitrary,  is  plainly  just,  and  clearly  it  does 
not  deprive  the  plaintiffs  in  error  of  their  property  without  compensa- 
tion or  without  due  process  of  law,  by  requiring,  as  it  does,  that  for 
ratemaking  purposes  the  Milwaukee  and  Omaha  companies  shall  ex- 
tend to  shippers  over  their  tracks  the  legal  title  to  which  is  in  the 
Eastern  Company,  equality  of  treatment  with  that  which  they  give 
to  shippers  over  their  separately  owned  tracks,  where  similar  service 
is  rendered. 

The  claim  that  an  unlawful  burden  is  imposed  upon  interstate  com- 
merce by  requiring  that  the  one  delivery  track  here  involved  shall  be 
treated  with  respect  to  intrastate  traffic  precisely  as  many  other 
similarly  used  and  situated  tracks  have  always  been  treated  by  the 
owning  companies  is  too  unsound  to  merit  consideration. 

The  judgment  of  the  Supreme  Court  of  Minnesota  is 

Aj^rmed. 

'  The  statement  of  facts  in  the  opinion  h  omitted.  —  Ed. 


COVINGTON   STOCK-YARDS   COMPANY   V.   KEITH.  335 


COVINGTON   STOCK-YARDS   COMPANY  v.   KEITH. 
Supreme  Court  of  the  United  States,  1891. 

[139  U.  S.  128.] 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

On  the  28th  of  January,  1886,  George  T.  Bliss  and  Isaac  E.  Gates 
instituted  in  the  court  below  a  suit  in  equity  against  the  Kentucky 
Central  Railroad  Company,  a  coi'poration  of  Kentucky,  for  the  fore- 
closure of  a  mortgage  or  deed  of  trust  given  to  secure  the  pa^'ment  of 
bonds  of  that  company  for  a  large  amount ;  in  which  suit  a  receiver 
was  appointed  who  took  possession  of  the  railroad,  with  authority  to 
operate  it  until  the  further  order  of  the  court. 

The  present  proceeding  was  begun  on  the  18th  of  June,  1886,  by  a 
petition  filed  in  the  foreclosure  suit  by  Charles  W.  Keith,  who  was 
engaged  in  buying  and  selling  on  commission,  as  well  as  on  his  own 
account,  live  stock  brought  to  and  shipped  from  the  city  of  Covington, 
Kentucky,  over  the  Kentucky  Central  Railroad,  The  petition  pro- 
ceeded upon  the  ground  that  unjust  and  illegal  discrimination  had  been 
and  was  being  made  against  Keith  by  the  receiver  acting  under  and 
pursuant  to  a  written  agreement  made  November  19,  1881,  between  the 
railroad  compan}-  and  the  Covington  Stock- Yards  Compan}',  a  corpora- 
tion created  under  the  general  laws  of  Kentucky  ;  the  yards  of  the  latter 
compan}'  located  in  Covington,  and  connected  with  the  railroad  tracks 
in  that  city,  being  the  onl}'  depot  of  the  railway  company  that  was  pro- 
vided with  the  necessarj'  platforms  and  chutes  for  receiving  or  discharg- 
ing live  stock  on  and  from  its  trains  at  that  city.  The  petition  alleged 
that  Keith  was  the  proprietor  of  certain  live-stock  lots  and  3-ards  in 
that  cit}'  immediately  west  of  those  belonging  to  the  Covington  Stock- 
Yards  Company,  and  separated  from  them  b}'  only  one  street  sixty 
feet  in  width  ;  that  he  was  provided  with  all  the  necessar}'  means  of  re- 
ceiving, feeding,  and  caring  for  such  stock  as  he  purchased,  or  as  might 
be  consigned  to  him  bj'  others  for  sale ;  and  that  his  lots  and  yards 
were  used  for  that  purpose  subsequently  to  March  1,  1886,  and  until, 
by  the  direction  of  the  receiver,  the  platforms  connecting  them  with 
the  railroad  were  torn  up  and  rendered  unfit  for  use.  The  prayer  of 
the  petitioner  was  for  a  rule  against  the  receiver  to  show  cause  wh}*  he 
should  not  deliver  to  him  at  some  convenient  and  suitable  place  outside 
of  the  lots  or  yards  of  the  said  Covington  Stock- Yards  Company'  free 
from  other  than  the  customary  freight  charges  for  transportation,  all 
stock  owned  by  or  consigned  to  him  and  brought  over  said  road  to 
Covington. 

The  receiver  filed  a  response  to  the  rule,  and  an  order  was  entered 
giving  leave  to  the  Covington  Stock- Yards  Company  to  file  an  inter- 
vening petition  against  the  railroad  company  and  Keith,  and  requiring 
the  latter  parties  to  litigate  between  themselves  the  question  of  the 


336  COVINGTON   STOCK-YARDS   COMPANY   V.   KEITH. 

validity  of  the  above  agreement  of  1881.  The  Stock- Yards  Company 
filed  such  a  petition,  claiming  all  the  rights  granted  by  the  agreement 
referred  to,  and  alleging  that  it  had  expended  sixty  thousand  dollars 
in  constructing  depots,  platforms,  and  chutes,  as  required  by  that 
agreement. 

Referring  to  that  agreement  it  appears  that  the  Stock- Yards  Com- 
pany stipulated  that  its  yards  on  the  line  of  the  railroad  in  Covington 
should  be  maintained  in  good  order,  properly  equipped  with  suitable 
fencing,  feeding-pens,  and  other  custoraar}'  conveniences  for  handling 
and  caring  for  live  stock,  and  to  that  end  it  would  keep  at  hand  a  suf- 
ficient number  of  skilled  workmen  to  perform  the  operations  required 
of  it,  and  generally  to  do  such  labor  as  is  usually  provided  for  in  stock 
yards  of  the  best  class,  namely,  to  load  and  unload  and  care  for  "  in 
the  best  manner  all  live  stock  delivered  to  them  b}'  the  party  of  the  first 
part  [the  railroad  company]  at  their  own  risk  of  damage  while  so  doing, 
and  in  no  event  to  charge  more  than  sixty  cents  per  car  of  full  loads 
for  loading  and  sixty  cents  per  car  for  unloading,  and  no  charges  to  be 
made  for  handling  less  than  full  loads,  as  per  waj-bills."  The  Stock- 
Yards  Company  also  agreed  to  become  liable  for  those  charges,  and  to 
collect  and  pa}'  over  to  the  railroad  company,  as  demanded  from  time 
to  time,  such  money  as  came  into  its  hands,  the  charges  for  feeding 
and  caring  for  live  stock  not  to  be  more  than  was  charged  for  similar 
services  and  supplies  at  other  stock  j'ards  of  the  countr}-.  The  railroad 
company,  upon  its  part,  agreed  to  paj*  the  Stock-Yards  Company  the 
above  sums  for  loading  and  unloading  and  otherwise  acting  as  its  agent 
in  the  collection  of  freights  and  charges  upon  such  business  as  was  turned 
over  to  it  by  the  railroad  companj- ;  that  it  would  require  all  cars  loaded 
at  3'ards  for  shipment  South  or  East  to  be  carefully  bedded,  which  the 
Stock-Yards  Company  was  to  do  at  the  rates  usually'  charged  in  other 
yards  ;  that  it  would  make  the  yards  of  the  Stock-Yards  Company  its 
"depot  for  delivery  of  all  its  live  stock,"  during  the  term  of  the  con- 
tract, and  not  build,  "  nor  allow  to  be  built,  on  its  right  of  way,  anj' 
other  depot  or  yards  for  the  reception  of  live  stock."  The  delivery  of 
stock  in  cars  on  switches  or  sidings  provided  for  the  purpose  was  to  be 
considered  a  delivery  of  the  stock  to  the  Stock-Yards  Company,  which, 
from  that  time,  was  to  be  responsible  for  the  stoc^  to  the  railroad  com- 
pany. To  protect  the  business  of  the  Stock-YardS  Company  from  dam- 
age in  case  the  railroad  extended  its  track  over  the  Ohio  River,  the 
railroad  company"  agreed  that  during  the  term  of  the  contract  the  rate 
of  freight  from  all  points  on  its  road  and  connections  should  "  not  be 
less  than  five  dollars  per  car  more  to  the  Union  Yards  of  Cincinnati 
than  the  rate  to  Covington  yards  from  the  same  points  ;  "  that  its  busi- 
ness arrangements  with  any  other  railroad  or  transportation  line  should 
be  subject  to  this  agreement ;  and  that  the  yards  of  the  Stock- Yards 
Company  *'  shall  be  the  depot  for  all  live  stock  received  from  its  con- 
nections for  Cincinnati  or  Eastern  markets."  The  agreement  by  its 
terms  was  to  remain  in  force  for  fifteen  vears. 


COVINOTON   STOCK-YARDS   COMPANY  V.   KEITH.  337 

In  the  progress  of  the  cause  E.  W.  Wilson,  by  consent  of  parties, 
was  made  a  co-petitioner  and  co-respondent  with  Keith. 

By  the  final  decree  it  was  found,  ordered,  and  decreed  as  follows: 
"  It  is  the  duty  and  legal  obligation  of  the  Kentucky  Central  Railroad 
Company,  as  a  common  carrier  of  live  stock,  to  provide  suitable  and 
convenient  means  and  facilities  for  receiving  on  board  its  cars  all  live 
stock  offered  for  shipment  over  its  road  arid  its  connections  from  the 
city  of  Covington,  and  for  the  discharge  from  its  cars  of  all  live  stock 
brought  over  its  road  to  the  said  cit}'  of  Covington,  free  of  any 
charge  other  than  the  customarj'  transportation  charges  to  consignors 
or  consignees ;  and  that  the  said  petitioners,  Keith  and  Wilson,  live- 
stock dealers  and  brokers,  doing  business  at  the  city  of  Covington,  and 
proprietors  of  the  Banner  Stock- Yards  at  that  place,  are  entitled  to  so 
ship  and  receive  over  said  road  such  live  stock  without  being  subject  to 
any  such  additional  charges  imposed  by  said  receiver,  said  railroad 
compan}-,  or  other  person  or  corporation.  The  court  further  finds  and 
decrees  that  the  alleged  contract  entered  into  by  and  between  the  said 
railroad  company  and  the  said  Covington  Stock- Yards  Company,  of 
date  the  19th  day  of  November,  1881,  does  not  entitle  the  said  Stock- 
Yards  Compan}'  to  impose  upon  any  shipper  of  live  stock  over  said 
road,  passing  such  stock  through  the  yards  of  said  compan}'  to  and 
from  the  cars  of  said  railroad  company',  any  charge  whatever  for  such 
passage.  It  is  stipulated  in  said  contract  that  said  Stock- Yards  Com- 
pan}'  shall  establish  and  maintain  suitable  yards  or  pens  for  receiving, 
housing,  feeding,  and  caring  for  live  stock,  and  to  receive  all  such 
stock,  and  load  and  unload  the  same  upon  and  from  the  cars  of  said 
company  transported  on  or  to  be  transported  over  said  road  for  a  com- 
pensation of  sixt}'  cents  per  car  load,  to  be  paid  by  said  railroad  company 
for  and  during  the  period  of  fifteen  years  from  the  date  of  said  contract, 
which  has  not  3'et  expired,  while  the  said  railroad  company  agreed  that 
it  would  not  during  said  period  establish  or  allow  to  be  established  on 
the  line  of  its  road  or  on  its  right  of  way  in  said  city  of  Covington  any 
other  platform  or  depot  than  that  of  said  Stock- Yards  Company  for  the 
receipt  or  delivery  of  such  live  stock.  .  .  .•  The  court  doth  further  find 
that  the  general  freight  depot  of  the  said  railroad  company  in  the  said 
city  of  Covington,  at  the  terminus  of  its  road  between  Pike  and  Eighth 
Streets,  is  not  a  suitable  or  convenient  place  for  the  receipt  and  delivery 
of  live  stock  brought  to  the  said  city  or  to  be  shipped  therefrom  over 
said  road,  and  neither  said  railroad  company  nor  said  receiver  having 
provided  such  suitable  depot  or  place  therefor,  except  the  j-ards  of  said 
Stock-Yards  Companj',  it  is  now  ordered  and  decreed  that  the  said  rail- 
road company  and  said  receiver  shall  hereafter  receive  and  deliver  from 
and  to  the  said  Keith  &  Wilson  at  and  through  the  said  Covington 
stock  yards  all  such  live  stock  as  ma}'  be  brought  to  them  or  offered  by 
them  for  shipment  over  said  road  and  its  connections,  upon  the  consent 
of  said  stock  yards,  in  writing,  that  it  may  be  so  done,  being  filed  in 
this  court  and  cause  on  or  before  the  1st  day  of  January  next  after  th« 


338  COVINGTON   STOCK-YARDS   COMPANY   V.   KEITH. 

entr}'  of  this  decree,  free  of  any  charge  for  passing  through  said  yards 
to  and  from  the  cars  of  said  railroad  compan}.  In  default  of  such  con- 
sent being  so  filed,  it  is  ordered  and  decreed  that  upon  said  Keith  & 
Wilson  putting  the  platform  and  chute  erected  by  them  on  the  land  of 
said  Keith  adjacent  to  the  live-stock  switch  of  said  railroad  company 
north  of  said  stock  yards  the  said  railroad  company  and  said  receiver 
shall  receive  and  deliver  all  such  live  stock  to  said  Keith  &  Wilson  as 
shall  be  consigned  to  them  or  either  of  them  or  be  offered  b}'  them  or 
either  of  them  for  shipment  at  said  platform.  The  said  Keith  &  Wilson 
shall  provide  an  agent  or  representative  at  said  platform  to  receive  such 
cattle  as  they  may  be  notified  by  said  railroad  company  or  said  receiver 
are  to  be  delivered  to  them  thereat,  and  the}'  shall  give  the  said  rail- 
road company  or  said  receiver  reasonable  notice  of  any  shipment 
desired  to  be  made  b}'  them  from  said  platform  to  conform  to  the  de- 
parture of  live-stock  trains  on  said  road." 

The  railroad  company,  holding  itself  out  as  a  carrier  of  live  stock, 
was  under  a  legal  obligation,  arising  out  of  the  nature  of  its  employ- 
ment, to  provide  suitable  and  necessary  means  and  facilities  for  receiv- 
ing live  stock  offered  to  it  for  shipment  over  its  road  and  connections, 
as  well  as  for  discharging  such  stock  after  it  reaches  the  place  to  which 
it  is  consigned.  The  vital  question  in  respect  to  such  matters  is, 
whether  the  means  and  facilities  so  furnished  by  the  carrier  or  by  some 
one  in  its  behalf  are  sufficient  for  the  reasonable  accommodation  of 
the  public.  But  it  is  contended  that  the  decree  is  erroneous  so  far  as 
it  compels  the  railroad  compan}'  to  receive  live  stock  offered  by  the  ap- 
pellees for  shipment  and  to  deliver  live  stock  consigned  to  them,  free 
from  any  chaise  other  than  the  customary  one  for  transportation,  for 
merely  passing  into  and  through  the  yards  of  the  Covington  Stock- 
Yards  Company  to  and  from  the  cars  of  the  railroad  company.  As  the 
decree  does  not  require  such  stock  to  be  delivered  in  or  through  the 
yards  of  the  appellant,  except  with  its  written  consent  filed  in  this 
cause ;  as  such  stock  cannot  be  properlj-  loaded  upon  or  unloaded  from 
cars  within  the  limits  of  the  city,  except  by  means  of  inclosed  lots  or 
yards  set  apart  for  that  purpose,  and  convenientl}'  located,  in  or  through 
which  the  stock  may  be  received  from  the  shipper  or  delivered  to  the 
consignee,  without  danger  or  inconvenience  to  the  public  in  the  vicinity 
of  the  place  of  shipment  or  discharge  ;  and  as  the  appellant  has  volun- 
tarily undertaken  to  discharge  the  duty  in  these  matters  that  rests  upon 
the  railroad  company,  the  contention  just  adverted  to,  is,  in  effect,  that 
the  carrier  may,  without  a  special  contract  for  that  purpose,  require 
the  shipper  or  consignee,  in  addition  to  the  customar}'  and  legitimate 
charges  for  transportation,  to  compensate  it  for  supplying  the  means 
and  facilities  that  must  be  provided  by  it  in  order  to  meet  its  obligations 
to  the  public.     To  this  proposition  we  cannot  give  our  assent. 

When  animals  are  offered  to  a  carrier  of  live  stock  to  be  transported 
It  is  its  duty  to  receive  tiiem  ;  and  that  duty  cannot  be  efficiently  dis- 
charged, at  least  in  a  town  or  city,  without  the  aid  of  yards  in  which 


COVINGTON   STOCK-YARDS  COMPANY  V.   KEITH.  339 

the  stock  offered  for  shipment  can  be  received  and  handled  with  safety 
and  without  inconvenience  to  the  public  while  being  loaded  upon  the 
cars  in  which  they  are  to  be  transported.  So,  when  live  stock  reach 
the  place  to  which  they  are  consigned,  it  is  the  duty  of  the  carrier  to 
deliver  them  to  the  consignee ;  and  such  delivery  cannot  be  safely  or 
effectively  made  except  in  or  through  inclosed  yards  or  lots,  convenient 
to  the  place  of  unloading.  In  other  words,  the  duty  to  receive,  trans- 
poi't,  and  deliver  live  stock  will  not  be  fully  discharged,  unless  the 
carrier  makes  such  provision,  at  the  place  of  loading,  as  will  enable  it 
to  properl}"  receive  and  load  the  stock,  and  such  provision,  at  the  place 
of  unloading,  as  will  enable  it  to  properly  deliver  the  stock  to  the 
consignee. 

A  railroad  company,  it  is  true,  is  not  a  carrier  of  live  stock  with  all 
the  responsibilities  that  attend  it  as  a  carrier  of  goods.  North  Penn. 
Railroad  v.  Commercial  Bank,  123  U.  S.  727,  734.  There  are  recog- 
nized limitations  upon  the  duty  and  responsibility  of  carriers  of  inani^ 
mate  property  that  do  not  apply  to  carriers  of  live  stock.  These 
limitations  arise  from  the  nature  of  the  particular  propert}'  transported. 
"But,"  this  court  said,  in  the  case  just  cited,  "notwithstanding  this 
diffei'ence  in  duties  and  responsibilities,  the  railroad  company,  when  it 
undertakes  generally  to  carry  such  freight,  becomes  subject,  under 
similar  conditions,  to  the  same  obligations,  so  far  as  the  delivery  of 
the  animals  which  are  safely  transported  is  concerned,  as  in  the  case  of 
goods.  They  are  to  be  delivered  at  the  place  of  destination  to  the 
part}'  designated  to  receive  them  if  he  presents  himself,  or  can  with 
reasonable  efforts  be  found,  or  to  his  order.  No  obligation  of  the  car- 
rier, whether  the  freight  consists  of  goods  or  live  stock,  is  more  strictly 
enforced."  *  The  same  principle  necessarily  applies  to  the  receiving  of 
live  stock  by  the  carrier  for  transportation.  The  carrier  must  at  all 
times  be  in  proper  condition  both  to  receive  from  the  shipper  and  to 
deliver  to  the  consignee,  according  to  the  nature  of  the  property  to  be 
transported,  as  well  as  to  the  necessities  of  the  respective  locaUties  in 
which  it  is  received  and  delivered.  A  carrier  of  live  stock  has  no  more 
right  to  make  a  special  charge  for  merely  receiving  or  merely  delivering 
such  stock,  in  and  through  stock  yards  provided  by  itself,  in  order  that 
it  may  px-operly  receive  and  load,  or  unload  and  deliver,  such  stock, 
than  a  carrier  of  passengers  may  make  a  special  charge  for  the  use  of 

1  Myrick  v.  Michigan  Central  Railroad,  107  U.  S.  102,  107 ;  Hall  &  Co.  v.  Renfro, 

3  Met  (Ky.)  51,  54;  Mynard  y.  Syracuse  &  Binghamton  Railroad,  71  N.  Y.  180; 
Smith  V.  New  Haven  &  Northampton  Railroad,  12  Allen,  531,  533  ;  Kimball  ?•.  Rutland 
&  Burlington  Railroad,  26  Vt.  247  ;  South  &  North  Alabama  Railroad  Company  v. 
Heulein,  52  Ala.  606,  613  ;  Wilson  c.  Hamilton,  4  Ohio  St.  722,  740  ;  Ayres  v.  Chicago 
&  Northwestern  Railroad,  71  Wis.  372,  379,  381  ;  McCoy  v.  K.  &  D.  M.  R.  Co.,  44 
Iowa,  424,  426;  Maslin  v.  B.  &  O.  R.  R.  Co.,  14  W.  Va.  ISO,  188;  St.  Louis  &  South- 
eastern Railway  v.  Dorman,  72  111.  504  ;  Monlton  v.  St.  Paul,  Minneapolis,  &c.  Rail- 
way, 31  Minn.  85,  87 ;  Kansas  Pacific  Railway  >'.  Nichols,  9  Kas.  235,  248  ;  Clarke  v. 
Rochester  &  Syracuse  Railroad,  14  N.  Y.  570,  573;  Palmer  v.  Grand  Junction  Railway, 

4  M.  &  W.  749. 


340  COVINGTON   STOCK-YARDS   COMPANY   V.   KEITH. 

its  passenger  depot  by  passengers  when  proceeding  to  or  coming  from 
its  trains,  or  than  a  carrier  may  charge  the  shipper  for  the  use  of  its 
general  freight  depot  in  merely  delivering  his  goods  for  shipment,  or 
the  consignee  of  such  goods  for  its  use  in  merely  receiving  them  there 
within  a  reasonable  time  after  they  are  unloaded  from  the  cars.  If  the 
carrier  may  not  make  such  special  charges  in  respect  to  stock  ^^ards 
which  itself  owns,  maintains,  or  controls,  it  cannot  invest  another  cor- 
poration or  company  with  authority  to  impose  burdens  of  that  kind 
upon  shippers  and  consignees.  The  transportation  of  live  stock  begins 
with  their  delivery  to  the  carrier  to  be  loaded  upon  its  cars,  and  ends 
only  after  the  stock  is  unloaded  and  delivered,  or  offered  to  be  deliv- 
ered, to  the  consignee,  if  to  be  found,  at  such  place  as  admits  of  their 
being  safely  taken  into  possession. 

We  must  not  be  understood  as  holding  that  the  railroad  company,  in 
this  case,  was  under  any  legal  obligation  to  furnish,  or  cause  to  be  fur- 
nished, suitable  and  convenient  appliances  for  receiving  and  delivering 
live  stock  at  ever}*  point  on  its  line  in  the  city  of  Covington  where  per- 
sons engaged  in  buying,  selling,  or  shipping  live  stock,  chose  to  estab- 
lish stock  yards.  In  respect  to  the  mere  loading  and  unloading  of  live 
stock,  it  is  only  required  bj'  the  nature  of  its  employment  to  furnish 
such  facilities  as  are  reasonably  sufficient  for  the  business  at  that  city. 
So  far  as  the  record  discloses,  the  yards  maintained  by  the  appellants 
are,  for  the  purposes  just  stated,  equal  to  all  the  needs,  at  that  cit}',  of 
shippers  and  consignees  of  live  stock ;  and  if  the  appellee  had  been 
permitted  to  use  them,  without  extra  charge  for  mere  "  yardage,"  they 
would  have  been  without  just  ground  of  complaint  in  that  regard  ;  for 
it  did  not  concern  them  whether  the  railroad  company  itself  maintained 
stock  yards,  or  emplo3ed  another  company  or  corporation  to  supply* 
the  facilities  for  receiving  and  delivering  live  stock  it  was  under  obli- 
gation to  the  public  to  furnish.  But  as  the  appellant  did  not  accord  to 
appellees  the  privileges  they  were  entitled  to  from  its  principal,  the 
carrier,  and  as  the  carrier  did  not  offer  to  establish  a  stock  yard  of  its 
own  for  shippers  and  consignees,  the  court  below  did  not  err  in  requir- 
ing the  railroad  company  and  the  receiver  to  receive  and  deliver  live 
stock  from  and  to  the  appellees  at  their  own  stock  yards  in  the  imme- 
diate vicinity  of  appellant's  j'ards,  when  the  former  were  put  in  proper 
condition  to  be  used  for  that  purpose,  under  such  reasonable  regulations 
as  the  railroad  compan}'  n)ight  establish.  It  was  not  within  the  power 
of  the  railroad  company,  b}-  such  an  agreement  as  that  of  November 
19,  1881,  or  b}'  agreement  in  any  form,  to  burden  the  appellees  with 
charges  for  services  it  was  bound  to  render  without  an}'  other  compen- 
Bation  than  the  customary  charges  for  transportation. 

Decree  affirmed. 


MICHIGAN  CENTRAL  R.  R.   CO.   V.   MICHIGAN  R.  R.    COMMISSION.     341 


MICHIGAN  CENTRAL  RAILROAD  COMPANY  v. 
MICHIGAN  RAILROAD  COMMISSION. 

Supreme  Court  of  the  United  States,  1915. 

[236  U.  S.  615.1] 

Mr.  Justice  Pitney  delivered  the  opinion  of  the  court. 

It  is  said  the  statute  as  construed  and  enforced  by  the  Commission 
and  the  Supreme  Court  is  repugnant  to  the  "due  process"  clause 
because  it  in  effect  requires  a  dehvery  by  the  Michigan  Central  at 
points  off  its  own  lines.  By  its  terms,  however,  the  order  does  not  re- 
quire the  Michigan  Central  to  haul  the  cars  to  points  on  the  Detroit 
United,  but  only  to  permit  them  to  be  hauled  by  the  latter  company. 
At  common  law  a  carrier  was  not  bound  to  carry  except  on  its  own  line, 
and  probably  not  required  to  permit  its  equipment  to  be  hauled  off 
the  Hue  by  other  carriers.  A.,  T.  &  S.  F.  R.  R.  v.  D.  &  N.  O.  R.  R., 
110  U.  S.  667,  680;  Kentucky  &c.  Bridge  Co.  v.  Louis.  &  Nash.  R.  R., 
37  Fed.  Rep.  567,  620;  Oregon  Short  Line  v.  Northern  Pacific  Ry., 
51  Fed.  Rep.  465,  472,  475;  affirmed,  61  Fed.  Rep.  158.  But  in  this, 
as  in  other  respects,  the  common  law  is  subject  to  change  by  legisla- 
tion; and,  so  long  as  the  reasonable  bounds  of  regulation  in  the  public 
interest  are  not  thereby  transcended,  the  carrier's  property  cannot  be 
deemed  to  be  "taken"  in  the  constitutional  sense.  Minn.  &  St.  Louis 
R.  R.  V.  Minnesota,  193  U.  S.  53,  63;  Atlantic  Coast  Line  v.  N.  Car. 
Corp.  Com'n,  206  U.  S.  1,  19;  Grand  Trunk  Ry.  v.  Michigan  Ry. 
Com.,  231  U.  S.  457,  470;  Wisconsin  &c.  R.  R.  v.  Jacobson,  supra; 
Chi.,  Mil.  &  St.  P.  Ry.  v.  Iowa,  supra. 

The  insistence  that  the  property  of  plaintiff  in  error  in  its  cars  is 
taken  by  the  order  requiring  it  to  deliver  them  to  the  Detroit  United 
Railway  involves,  as  we  think,  a  fundamental  error,  in  that  it  over- 
looks the  fact  that  the  vehicles  of  transportation,  like  the  railroad 
upon  which  they  run,  although  acquired  through  the  expenditure  of 
private  capital,  are  devoted  to  a  public  use,  and  thereby  are  subjected 
to  the  reasonable  exercise  of  the  power  of  the  State  to  regulate  that 
use,  so  far  at  least  as  intrastate  commerce  is  concerned.  Munn  v. 
HKnois,  94  U.  S.  113.  That  it  is  not  as  a  rule  unreasonable  to  require 
such  interchange  of  cars  sufficiently  appears  from  the  universality  of 
the  practice,  which  became  prevalent  before  it  was  made  compulsory, 
and  may  be  considered  as  matter  of  common  knowledge,  inasmuch  as 
a  freight  train  made  up  wholly  of  the  cars  of  a  single  railroad  is,  in 
these  days,  a  rarity.     In  Michigan,  car  interchange  has  long  been  a 

*  Part  of  the  opinion  is  omitted.  —  Ed. 


342     MICHIGAN  CENTRAL  R.  R.   CO.  V.  MICHIGAN  R.  R.  COMMISSION. 

Statutory  duty.  Mich.  Gen.  Acts  1873,  No.  79,  §  15,  p.  99;  No.  198, 
§  28,  p.  521;  Michigan  Central  R.  R.  v.  Smithson,  45  Michigan,  212, 
221.  And  see  Peoria  &  P.  U.  Ry.  t.  Chicago,  R.  I.  &  P.  Ry.,  109  Ilh- 
nob,  135,  139;  Burhngton  &c.  Ry.  v.  Dey,  82  Iowa,  312,  335;  State 
V.  Chicago  &c.  Ry.,  152  Iowa,  317,  322;  affirmed,  233  U.  S.  334;  Pitts- 
burgh &c.  Ry.  V.  R.  R.  Commission,  171  Indiana,  189,  201;  Jacobson 
V.  Wisconsin  &c.  R.  R.,  71  Minnesota,  519,  531;  affirmed,  179  U.  S.  287. 

To  speak  of  the  order  as  requiring  the  cars  of  plaintiff  in  error  to 
be  dehvered  to  the  Detroit  United  "for  the  use  of  that  company" 
involves  a  fallacy.  The  order  is  designed  for  the  benefit  of  the  public 
having  occasion  to  employ  the  connecting  lines  in  through  transporta- 
tion. The  Detroit  United,  like  the  Michigan  Central,  acts  in  the 
matter  as  a  public  agency. 

The  contention  that  no  provision  is  made  for  the  paramoimt  needs 
of  plaintiff  in  error  for  the  use  of  its  own  equipment,  nor  for  the  prompt 
return  or  adjustment  for  loss  or  damage  to  such  equipment,  nor  for 
compensation  for  the  use  thereof,  is  not  substantial.  The  order  is  to 
receive  a  reasonable  interpretation,  and  according  to  its  own  recitals 
is  to  be  read  in  the  hght  of  the  opinion  of  the  Commission,  which 
shows  that  it  is  not  intended  to  have  an  effect  inconsistent  with  the 
other  operations  of  the  company.  It  was  expressly  found  that  there 
was  no  special  ground  for  apprehending  loss  or  damage  to  the  equip- 
ment. Certainly  the  order  does  not  exclude  the  ordinary  remedies 
for  delay  in  returning  cars  or  for  loss  or  damage  to  them.  Nor  does  it 
contemplate  that  plaintiff  in  error  shall  be  required  to  permit  the  use 
of  its  cars  (or  of  the  cars  of  other  carriers  for  which  it  is  responsible) 
off  its  line  without  compensation.  The  state  court  expressly  held 
that  section  7,  c,  provides  for  reasonable  compensation  to  the  carrier 
whose  cars  are  used  in  the  interchange.  The  finding  of  the  Commis- 
sion, approved  by  the  court,  was  that  the  Michigan  Central  would 
merely  have  to  expend  its  proportion  of  the  amount  necessary  to  in- 
stall the  connection  between  the  two  roads,  and  would  be  called  upon 
for  no  further  expenditure  in  the  premises,  and  that  the  business  to 
be  derived  by  it  from  Ortonville,  Goodrich,  and  the  surrounding 
country  via  the  Detroit  United  Railway,  promised  to  be  considerable 
in  amount,  and  thereby  the  Michigan  Central  would  be  a  beneficiary 
from  the  proposed  connection  and  interchange.  It  was,  we  think, 
permissible  for  the  court  to  find,  as  in  effect  it  did  find,  that  the  bene- 
fits thus  derived  would  include  compensation  for  the  use  of  the  cars 
of  the  Michigan  Central  for  purposes  of  loading  and  delivery  along 
the  line  of  the  Detroit  United.  We  are  unable  to  see  that  any  question 
as  to  the  adequacy  of  the  compensation  was  raised  in  the  state  court. 

Plaintiff  in  error  relies  upon  Central  Stock  Yards  v.  Louis.  &  Nash. 


MICHIGAN  CENTRAL  R.  R.   CO.   V.  MICHIGAN  R.  R.    COMMISSION.    343 

R.  R.,  192  U.  S.  568,  and  Louis.  &  Nash.  R.  R.  v.  Stock  Yards  Co., 
212  U.  S.  132.  The  former  of  these  was  an  action  in  the  federal  court 
and  came  here  by  appeal  from  the  Circuit  Court  of  Appeals.  This 
court  held  as  a  matter  of  construction  that  the  constitution  of  Ken- 
tucky did  not  require  that  the  railroad  company  should  deliver  its 
own  cars  to  another  road.  The  second  case  was  a  review  of  the  judg- 
ment of  the  court  of  last  resort  of  the  State.  That  court  having  held 
that  the  state  constitution  did  require  the  carrier  to  deliver  its  own 
cars  to  the  connecting  road,  it  was  contended  that  this  requirement 
was  void  under  the  Fourteenth  Amendment  as  an  unlawful  taking  of 
property.  This  court  said  (212  U.  S.  143) :  "  In  view  of  the  well-known 
and  necessary  practice  of  connecting  roads,  we  are  far  from  saying 
that  a  valid  law  could  not  be  passed  to  prevent  the  cost  and  loss  of 
time  entailed  by  needless  transshipment  or  breaking  bulk,  in  case  of 
an  imreasonable  refusal  by  a  carrier  to  interchange  cars  with  another 
for  through  traffic.  We  do  not  pass  upon  the  question.  It  is  enough 
to  observe  that  such  a  law  perhaps  ought  to  be  so  limited  as  to  respect 
the  paramount  needs  of  the  carrier  concerned,  and  at  least  could  be 
sustained  only  with  full  and  adequate  regulations  for  his  protection 
from  the  loss  or  undue  detention  of  cars,  and  for  securing  due  com- 
pensation for  their  use.  The  constitution  of  Kentucky  is  simply  a 
universal  undiscriminating  requirement,  with  no  adequate  provisions 
such  as  we  have  described.  .  .  .  We  do  not  mean,  however,  that  the 
silence  of  the  constitution  might  not  be  remedied  by  an  act  of  legisla- 
ture or  a  regulation  by  a  duly  authorized  subordinate  body  if  such 
legislation  should  be  held  consistent  with  the  state  constitution  by 
the  state  court."  The  case  now  before  us  is  plainly  distinguishable, 
as  appears  from  what  we  have  said.  And,  upon  the  whole,  we  see  no 
sufficient  ground  for  denouncing  the  regulation  in  question  as  either 
arbitrary  or  unreasonable. 


344      PENNSYLVANIA  COAL   CO.   V.   DELAWABE,   ETC.   CANAL   CO. 


CHAPTER  VI. 

BEGULATION  OF  THE   SERVICE. 


PENNSYLVANIA  COAL  CO.  v.   DELAWARE  AND  HUDSON 

CANAL  CO. 

Court  of  Appeals,  New  York,  1865. 
[31  N.  Y.  91.] 

Davies,  J.  The  defendant  is  the  owner  of  a  canal  extending  from 
tide  water  on  the  Hudson  River,  to  the  interior  of  the  State  of  Pennsyl- 
vania. The  plaintiff  is  the  owner  of  extensive  coal  mines,  bordering 
on  the  defendant's  canal,  which  it  mines  for  transportation  to  market. 
For  such  purpose,  it  is  the  owner  of  a  large  number  of  canal  boats 
navigating  the  defendant's  canal.  By  an  agreement  or  deed,  made 
and  entered  into  between  the  parties  to  this  action,  dated  29th  Jiih', 
1851,  the  defendant  covenanted  and  agreed  with  the  plaintiff,  to  furnish 
to  any  and  all  boats  owned  or  used  b}-  the  plaintiff  for  the  purpose  of 
transporting  coal  entering  the  said  canal,  by  railroad  connecting  with 
the  said  canal,  at  or  near  the  mouth  of  the  Wallenpaupack  River,  or 
containing  coal,  entering  as  aforesaid,  belonging  to  or  transported  by 
or  on  account  of  the  plaintiff,  in  which  coal,  or  the  transportation 
thereof,  the  plaintiff  might  be  in  any  manner  interested,  all  the  facili- 
ties of  navigation  and  transportation  which  the  said  canal  should  fur- 
nish, when  in  good,  navigable  condition  and  repair,  to  boats  used  by 
any  other  company  or  person,  or  belonging  to  or  used  by  or  containing 
coal  transported  by  or  for  or  on  account  of  the  defendant.  Tlie  plaintiff 
alleged  a  breach  of  said  contract  or  agreement  in  this,  that  the  number 
of  boats  employed  b}'  the  plaintiff  in  the  transportation  of  coal  upon 
said  canal,  was  greater  than  the  number  emploj'ed  by  the  defendant 
therein,  and  that  the  boats  of  the  plaintiff,  and  those  employed  by  it, 
made  their  trips  in  much  shorter  time  than  the  boats  of  the  defendant, 
and  therefore  the  act  of  the  defendant  in  neglecting  and  refusing  to 
pass  the  boats  of  the  plaintiff  through  the  locks  on  said  canal  in  the 
order  in  which  thej'  arrived  at  the  locks  respectively,  but  delaying  them 


PENNSYLVANIA   COAL   CO.   V.   DELAWARE,   ETC.    CANAL   CO.       345 

until  one  of  the  boats  of  the  defendant,  or  of  some  individual,  arriving 
after  the  plaintifif's  boat  at  such  lock,  had  been  passed,  was  highly  in- 
jurious and  of  great  detriment  to  the  plaintiff.  The  plaintiff  prays 
Judgment,  that  the  defendant  may  be  decreed  and  adjudged  to  use  and 
manage  said  canal  and  the  locks  thereon,  in  such  manner  as  not  to  im- 
pede, hinder,  or  delay  the  boats  of  the  plaintiff  navigating  the  said 
canal,  and  used  for  the  purpose  of  transporting  coal  entering  said  canal 
at  or  near  the  mouth  of  the  Wallenpaupack  River,  or  containing  coal, 
and  entering  as  aforesaid,  belonging  to  or  transported  hy  or  on  account 
of  the  plaintiff,  and  may  be  restrained  from  giving  the  preference  of 
passage  through  any  lock  thereon  to  some  other  boat  than  the  plaintiff's, 
although  the  latter  arrived  first  at  such  lock,  and  that  the  defendant 
might  be  decreed  specificalh'  to  perform  its  said  agreement  with  the 
plaintiff. 

The  case  was  tried  by  the  court  without  a  jurj',  and  the  court  found 
as  matter  of  fact,  that  the  plaintiff  had  not  proven  a  breach  of  the  con- 
tract, and  the  court  thereupon  gave  judgment  for  the  defendant,  de- 
nying the  relief  asked  for,  and  denj-ing  the  injunction  prated  for  and 
dismissing  the  complaint  with  costs.  The  General  Term,  on  appeal, 
affirmed  this  judgment,  and  the  plaintiff  now  appeals  to  this  court. 

The  only  ground  upon  which  the  plaintiff  could  invoke  the  aid  of  a 
court  of  equit}'  to  decree  a  specific  performance  of  the  contract,  and  to 
restrain  the  defendant  from  its  violation,  was  that  there  had  been  a 
breach  of  the  contract  and  a  violation,  or  a  threatened  violation  of  it. 
This  was  the  foundation  of  the  plaintiff's  edifice,  the  corner  stone  upon 
which  it  rested.  The  finding  by  the  court,  that  no  breach  or  violation 
of  the  contract  had  been  proven,  entirely  demolishes  all  claim  of  the 
plaintiff  to  any  equitable  relief  No  threatened  violation  of  the  con- 
tract is  alleged  or  pretended,  and  it  follows  that  the  judgment  of  the 
Supreme  Court  on  this  state  of  facts  was  correct,  and  the  same  should 
be  affirmed. 

MuLLiN,  J.  Two  questions  onl}'  are  presented  for  consideration  on 
this  appeal.  These  are  :  1st.  Whether  the  contract  between  the  parties 
had  been  violated.  And  if  it  has,  then,  2d.  Are  the  plaintiffs  entitled 
to  a  specific  performance  of  the  contract. 

1.    Have  the  defendants  broken  the  contract? 

The  defendants  obligated  themselves  by  the  agreement  to  furnish  to 
the  plaintiffs'  boats  all  the  facilities  of  navigation  and  transportation 
which  their  canal  should  afford,  when  in  good  and  navigable  condition 
and  repair,  to  boats  owned  or  used  by  any  other  company  or  person,  or 
owned  or  used  by  the  defendants  for  the  transportation  of  coal. 

Tlie  contract,  it  will  be  perceived,  is  not,  as  the  plaintiffs'  counsel 
seems  to  construe  it,  that  the  defendants  will  afford  to  the  plaintiffs' 
boats  all  the  facilities  of  navigation  that  the  canal,  when  in  good  order, 
shall  afford,  but  it  is  to  furnish  all  the  facilities  to  the  plaintiffs  that  the 
canal,  when  in  good  order,  shall  afford  to  an}'  other  person's  or  com- 
pany's boats,  including  defendants'  own  boats. 


346      PENNSYLVANIA   COAL   CO.    V.   DELAWARE,  ETC.   CANAL   CO. 

Before  the  plaintiffs  can  insist  that  the  contract  has  been  violated  as 
to  its  boats,  the}-  were  bound  to  show  what  facilities  were  afforded  by 
the  canal,  when  in  good  order,  to  other  boats.  No  difference  is  shown 
to  have  been  made  between  the  plaintiffs'  boats  and  those  of  other 
owners,  in  the  facilities  extended  in  the  business  of  navigating  the 
canal. 

The  defendants,  as  owners,  had  the  right  to  prescribe  such  reason- 
able rules  and  regulations  for  the  government  of  vessels  passing  along 
their  canal,  as  their  directors  deemed  best  calculated  to  promote  their 
own  interests  and  the  interests  of  those  engaged  in  navigating  the 
canal.  Such  regulations  must  embrace  the  order  in  which  boats  should 
pass  through  the  locks.  Such  regulations,  while  resting  largely  in  the 
discretion  of  the  officers  of  the  company,  must,  nevertheless,  be  rea- 
sonable. Now,  it  appears  that  all  boats  passing  to  the  Hudson  River, 
were  locked  through  the  Eddyville  lock  in  the  order  of  their  arrival 
at  such  lock.  This  regulation  is  not  complained  of;  but  it  is  insisted 
that  the  same  rule  should  be  observed  in  locking  up  through  the  same 
lock  the  empty  boats,  and  that  the  omission  to  do  so  is  a  breach  of  the 
agreement.  It  is  claimed  that  the  detention  of  plaintiffs'  boats,  if  they 
first  arrive  at  the  lock,  until  boats  of  the  defendants,  subsequently 
arriving,  are  locked  through  alternately  with  plaintiffs',  causes  unrea- 
sonable dela}',  and  is  an  unjust  detention  of  the  plaintiffs'  boats. 

When  the  plaintiffs'  boats  arrive  at  the  lock  first,  it  does  seem  to  be 
oppressive  to  require  any  of  them  to  be  delayed  until  the  boats  of 
other  persons,  subsequently  arriving,  are  locked  through.  But  it  must 
sometimes  happen  that  the  defendants'  boats  arrive  first,  and  if  they 
are  delayed  until  the  plaintiffs'  boats,  subsequently  arriving,  have 
been  passed  through,  the  plaintiffs  have  the  benefit  of  the  same  rule 
which  operated  injuriously  when  their  boats  were  first  at  the  lock. 
While  the  rule  is  uniformly  and  impartially  applied,  it  is  difficult  to 
see  how  it  operates  to  the  prejudice  of  the  plaintiffs  rather  than  to  that 
of  all  others  navigating  the  canal.  While  it  is  true  that  the  plaintiffs 
owned  the  largest  number  of  boats,  it  does  not  follow,  nor  is  it  proved, 
that  their  boats  are  uniformly  first  at  the  lock  on  their  way  back  to  the 
mines.  If  they  are  not,  tiien  the}'  must  take  the  dela}'  imposed  upon 
them  b}'  the  regulation  in  compensation  for  the  benefit  derived  from 
passing  alternately  with  boats  arriving  at  the  lock  l)efore  those  of  the 
plaintiffs. 

It  does  not  appear  that  the  regulation  complained  of  was  a  new  one. 
It  may  have  been,  and  in  the  absence  of  both  allegation  and  proof  to 
the  contrary,  I  think  we  are  bound  to  presume  that  it  had  been  in  force 
from  the  making  of  the  contract ;  and  if  so  —  if  the  plaintiffs  had  ac- 
quiesced in  it  for  so  long  a  time  —  it  is  somewhat  late  to  complain 
of  it. 

If  the  regulation  was  designed  to  embarrass  the  plaintiffs,  it  is  diffi- 
cult to  see  why  it  should  not  have  been  applied  to  the  boats  coming  to 
as  well  as  to  those  going  from  the  Hudson.     There  would  seem  to  have 


PENNSYLVANIA   COAL   CO.    V.   DELAWARE,   ETC.   CANAL   CO.      347 

been  some  reason  for  the  discrimination,  but  what  it  is  is  not  disclosed 
by  the  case. 

A  reason  is  suggested  by  the  respondents'  counsel  which  would  seem 
to  account  for  the  regulation,  and  is  probably  the  true  one,  and  that 
is,  that  as  but  a  single  boat,  or  at  most  but  a  very  limited  num- 
ber of  boats  is  being  laden  at  the  same  time,  by  either  party,  it  is  no 
cause  of  dela}'  that  the  empty  boats  arrive  one  after  the  other,  at  in- 
tervals of  twenty  minutes ;  for  if  twenty  or  thirty  boats  arrive  at  one 
time,  they  must  be  detained  until  those  ahead  are  loaded,  and  the  re- 
sult would  be,  that  while  nothing  would  be  gained  b^"  the  plaintiffs, 
considerable  time  would  be  lost  by  the  other  boats  compelled  to  wait 
until  all  of  plaintiffs'  boats  had  passed  through.  By  the  regulation,  it 
would  seem  that  plaintiffs'  boats  are  passed  up  as  fast  as  they  are  re- 
quired to  be  loaded,  and  that  unnecessary  delay  to  the  defendants'  boats 
is  avoided. 

A  preference  seems  to  be  given  to  transient  boats  over  those  of  either 
the  plaintiffs  or  defendants.  In  what  business  these  transient  boats 
were  employed,  or  their  number,  or  who  were  the  owngrs,  does  not  ap- 
pear. But  it  is  probable  that  they  were  boats  engaged  in  the  trans- 
portation of  property  other  than  coal,  and  that  the  number  was  small 
compared  with  the  number  owned  by  the  plaintiffs  or  defendants.  If 
these  conjectures  are  correct,  they  would  account  for  the  preference 
given  to  such  boats  in  passing  the  lock.  It  would  be  very  harsh  to  re- 
quire a  man,  owning  a  single  boat,  to  be  detained  until  thirty  or  fort}' 
boats,  arriving  ahead  of  him,  were  got  through  the  lock.  And,  when 
a  preference  was  given  to  one  such  boat,  it  became  necessary  to  ex- 
tend it  to  all,  and  it  does  not  appear  that  the  preference  delayed  the 
loading  of  any  of  the  plaintiffs'  boats.  This  delay,  and  not  that  at 
the  lock,  would  be  the  cause  of  damage  of  which  the  plaintiffs  could 
justly  complain.  If  the  boats,  on  arriving  at  their  place  of  destination, 
would  have  been  detained  as  long  before  being  loaded  as  the.y  lay  at  the 
lock,  it  is  not  perceived  how  the  plaintiffs  could  be  damnified. 

In  a  word,  the  regulation  is  one  that  the  defendants  had  the  right  to 
make  ;  it  is  not  shown  to  be  either  unreasonable  or  unjust,  nor  that  it 
has  been  the  cause  of  any  real  injury  to  the  plaintiffs.  It  seems  to 
have  been  acquiesced  in  for  a  long  time,  and  no  reason  is  perceived 
why  it  should  now  be  repudiated  or  annulled.^ 

Judgment  affirmed. 

1  The  learned  judge  also  held  that  no  case  had  been  shown  for  equitable  jurisdic- 
tion.—  Ed. 


348  PLATT  V.  LECOCQ. 


PLATT  V.  LECOCQ. 
Circuit  Court  of  Appeals  of  the  United  States,  1907. 

[158  Fed.  723.1] 

This  is  an  appeal  from  a  decree  of  the  court  below  that  an  order 
of  the  Board  of  Railroad  Commissioners  that  the  United  States  Ex- 
press Company  receive  at  its  offices  in  Aberdeen,  8.  D.,  from  the 
Aberdeen  National  Bank,  all  moneys  tendered  to  it  by  that  bank  for 
carriage  on  certain  trains  which  leave  Aberdeen  at  6:30,  7:00,  and 
7:45  a.  m.,  during  all  I'easonable  business  hours  of  the  day  preceding 
the  departure  of  these  trains,  be  enforced. 

Sanborn,  Circuit  Judge,  The  safe-keeping  overnight  and  delivery  in 
the  morning  before  the  trains  start  of  the  specie  and  currency  which  the 
bank  might  desire  to  ship  by  this  express  company  upon  these  morning 
trains  will  entail  no  more  expense  upon  the  bank  than  their  delivery  the 
day  before,  while  the  receipt  of  them  on  the  latter  day  and  their  storage 
overnight  will  cause  the  express  company  additional  expense,  and  will 
make  its  business  of  handling  this  money  a  losing  one.  The  risk  of 
keeping  these  packages  of  mone^^  overnight  is  less  to  the  bank  than  to 
the  express  companj-,  because  it  has  a  burglar  proof  vault,  and  trusty 
messengers  for  the  purpose  of  keeping  large  amounts  of  money  safely, 
and  protecting  them  against  robbers  and  fire  in  the  cit}'  of  Aberdeen, 
while  the  express  company  has  no  such  safeguards  and  facilities  in  that 
city,  and,  finally,  the  business  of  the  bank  is  to  receive  and  keep  safely  for 
its  depositors  in  the  city  of  Aberdeen,  and  to  send  to  them  and  to  others 
who  buy  or  borrow  it,  the  specie  or  currency  deposited  with  it,  and  it 
has  a  suitable  vault  and  trusty  officers  and  servants  to  carry  on  this 
business  and  to  protect  this  mone}*.  The  business  of  the  express 
company,  on  the  other  hand,  is  to  transport  money,  to  keep  it  safel}, 
and  to  insure  it  against  loss  during  its  transportation,  and  for  this 
purpose  it  has  specially  constructed  stationary  safes  in  cars  and  trusty 
messengers  to  travel  with  it,  but  it  is  no  part  of  its  business  to  store  or 
to  keep  valuable  packages  of  specie  or  currency  for  any  length  of  time 
greater  than  is  reasonably  necessary  to  conduct  its  transportation. 
The  trains  under  consideration  do  not  leave  Aberdeen  at  very  early 
hours  in  the  morning,  and  it  is  neither  impossible  nor  impracticable  for 
the  bank  to  deliver  its  packages  of  money  to  the  express  company  in 
the  morning  of  the  day  before  the  trains  start.  To  require  the  express 
company  to  receive  these  packages  on  the  preceding  day,  and  to  store 
them  and  to  insure  their  safe-keeping  overnight  is  to  transfer  to  the  ex- 
press compan}'  a  part  of  the  risk,  responsibility',  and  business  of  the 
bank,  a  part  of  the  safe-keeping  of  specie  and  currency  in  the  city  of 
Aberdeen,  a  part  of  its  business  which  it  has  adequate  safeguards  to 
conduct,  which  it  undertakes  to  carry  on,  and  for  which  it  presumably 

*  Ooly  the  conclading  part  of  the  opinion  is  printed. —  Ed. 


PLATT   V.   LECOCQ.  349 

receives  reasonable  compensation,  while  the  express  company,  which 
has  no  such  facilities,  can  secure  no  such  compensation,  and  does  not 
offer  or  undertake  to  do  any  such  business.  In  view  of  these  facts, 
rules,  and  considerations,  the  evidence  in  this  case  falls  far  short  of 
convincing  proof  that  the  rules  and  practice  of  the  express  company 
upon  this  subject  which  have  been  assailed  here  were  unreasonable  or 
unjust.  Indeed,  in  our  opinion,  it  would  be  far  more  unreasonable  to 
require  the  express  company  to  receive  these  packages  of  specie  and 
currency  for  transportation  on  the  morning  trains  the  day  before  they 
start,  and  thereb}-  to  compel  it  to  store  and  insure  them  overnight, 
than  it  would  be  to  refuse  so  to  do,  and  thus  to  leave  the  bank  to  send 
them  insured  by  mail  at  a  lower  rate,  or  to  deliver  them  to  the  express 
compan}'  in  the  morning  before  the  trains  depart. 

There  is  another  consideration  which  leads  to  the  same  conclusion. 
Courts  and  commissions  ought  not  to  interfere  with  the  established 
rules  and  practice  of  transportation  companies  on  account  of  incidental 
inconveniences  and  trivial  troubles  to  which  the  conduct  of  all  business 
is  necessarily  subject.  The  business  of  railroad  companies  and  express 
companies  cannot  be  conducted  for  the  purpose  of  carrying  on  the 
business  of  their  customers  exclusiveh',  nor  without  some  discomforts 
and  inconveniences  to  all  parties  engaged  in  anj'  of  these  occupations. 
Unless  a  clear  injustice  is  perpetrated  or  a  substantial  injury  is  inflicted, 
or  there  is  an  imminent  threat  of  them,  the  annoj'ances  and  inconven- 
iences in  the  transaction  of  the  business  of  the  transportation  com- 
panies should  be  left  for  correction  in  the  pecuniary  interests  and 
business  instincts  of  the  respective  parties  concerned,  and  their  laud- 
able anxiet}'  to  secure,  retain,  and  increase  their  business.  No  injustice 
has  been  perpetr^.ted  in  this  case.  No  serious  damage  has  been,  or  is 
likely  to  be,  inflicted  upon  the  bank  by  the  refusal  of  the  express  com- 
pany to  receive  money  until  the  morning  of  the  day  when  the  trains 
depart,  in  view  of  the  pregnant  fact  that  it  has  elected  to  cause  its 
incoming  currencj'  to  be  shipped  to  it  b}'  mail  for  more  than  a  3'ear, 
and  to  the  amounts  of  hundreds  of  thousands  of  dollars,  when  it  could 
have  caused  it  to  have  been  sent  by  this  express  compan}-.  No  other 
shipper  is  complaining,  and  the  practice  of  the  express  company  creates 
no  preference  or  prejudice  to  party,  locality,  or  description  of  traffic, 
while  the  practice  which  the  bank  seeks  to  enforce  will  inevitably 
compel  other  parties  and  other  descriptions  of  traffic  to  bear  a  part  of 
the  burden  of  storing  and  keeping  overnight  the  mone3's  it  seeks  to 
send  out.  There  is  no  equity  in  this  case  of  the  bank,  and  it  is  entitled 
to  no  relief.^ 

Beversed. 

1  Compare:  Alsop  v.  Sonthern  Express  Company,  104  N.  C.  278,  contra. 


350  POPE   V.   HALL. 


POPE  V.  HALL. 
Supreme  Court  of  Louisiana,  1859. 

[14  La.  Ann.  324] 

Merrick,  C.  J.  This  suit  has  been  brought  against  Messrs. 
Hall  &  Hildretb,  the  proprietors  of  the  well-known  St.  Charles  Hotel, 
of  this  city,  to  recover  of  them  three  hundred  and  forty-five  dollars, 
for  a  watch  and  chain  and  gold  coin,  alleged  to  have  been  stolen  from 
the  trunk  of  the  plaintiff  whilst  lodging  with  the  defendants  as  a 
traveller. 

The  case  was  tried  without  the  intervention  of  a  jur},  and  an  elabo- 
rate examination  of  the  law  and  facts  by  the  learned  judge  of  the 
District  Court  resulted  in  a  judgment  in  favor  of  the  plaintiff  for  $300  ; 
defendants  have  appealed. 

At  the  head  of  each  stairwa}'  a  large  card  was  posted,  cautioning 
the  boarders  to  beware  of  hotel  thieves,  and  requesting  them  to  deposit 
all  mone}',  jewelry,  watches,  plate,  or  other  valuables,  in  the  safe  at  the 
oflSce,  and  notifying  the  guests  that  the  proprietors  would  not  be 
responsible  for  any  such  articles  stolen  from  the  rooms. 

The  regulations  of  the  hotel  were  posted  in  print  in  each  of  the 
rooms.  Among  other  regulations,  is  stated  that  "  mone}'  and  articles 
of  value  ma}'  be  deposited  and  a  receipt  taken,  and  no  remuneration 
ma}'  be  expected  if  lost  when  otherwise  disposed  of." 

The  defendants  contend  that  the  innkeeper  has  the  right  to  say 
where  the  property  shall  be  kept  as  a  sequence  of  his  responsibility ; 
that  if  he  is  to  be  held  responsible  as  a  custodian,  he  must  be  permitted 
to  guard  the  property  in  his  own  way,  and  they  derive  this  right  to 
limit  the  responsibility  from  the  Roman  law,  and  cite  the  concluding 
paragraph  to  law  7.  Dig.,  lib.  4,  tit.  9,  De  protestatione  exercitoris. 
It  is  as  follows  :  — 

Item  si  prcedixerit,  et  unusquisque  rectorum  res  suas  servet,  neque 
damnum  se  prcBStaturum^  et  consenserint  vectores  predictioni^  non 
convenitur. 

It  will  be  observed  in  the  text  cited,  that  the  master  of  the  ship 
limits  his  liability  only  by  the  actual  consent  of  the  passengers.  In 
the  present  case,  this  right  is  claimed  to  the  innkeeper  without  such 
express  consent  of  the  traveller. 

Without  reviewing  the  cases,  or  entering  into  the  prolix  discussions 
which  this  question  has  given  rise  to  in  France,  England,  and  the  United 
States,  it  is  sufficient  to  say  that  we  think  the  district  judge  verv  cor- 
recth'  took  a  distinction  between  articles  of  value  and  those  ordinarily 
worn,  together  with  such  small  sums  of  money  as  are  usually  carried 
about  the  person.  He  says,  in  conclusion  :  "  They(innkeepers)  have 
no  right  to  require  a  traveller  to  deliver  up  to  them  bis  necessary 


FULLER  V.   COATS.  351 

baggage,  his  watch,  which  adorns  his  person  and  is  a  part  of  his  per- 
sonal apparel,  and  the  money  which  he  has  about  him  for  his  personal 
use.  Such  a  regulation  is  contrary'  to  law  and  reason.  If  he  had  large 
sums  of  money  or  valuables  the  rules  might  be  different. 

Under  this  view  of  the  case,  which  we  adopt,  it  is  a  matter  of  indif- 
ference whether  the  plaintiff  did  or  did  not  read  the  notices  posted  in 
the  hotel. 

The  traveller  who  arrives  at  the  inn  where  he  intends  to  lodge  during 
the  night,  ought  not  to  be  required  to  pax't  with  his  watch  which  may 
be  necessary  to  him  to  regulate  his  rising,  or  to  know  when  the 
time  of  departure  of  the  morning  train  or  boat  has  arrived.  Neither 
ought  he  to  be  required  to  deposit  with  the  innkeeper  such  small  sums 
of  money  as  are  usuall}'  carried  by  the  majority  of  persons  in  the  like 
condition  in  life  visiting  such  hotel. 

The  innkeeper  should  provide  safe  locks  or  fastenings  to  the  rooms, 
and  in  default  of  the  same,  he  must  be  held  responsible  for  the  loss  of 
such  articles  of  apparel  and  small  sums  of  money  as  are  usuall}' 
carried  or  worn  by  the  class  of  persons  favoring  the  hotel  with  their 
patronage. 

The  estimate  of  the  damage  sustained  by  the  plaintiff  is  justified  by 
the  proof.  Judgment  affirmed. 

VooRHiES,  J.,  absent 


FULLER  V.   COATS. 
Supreme  Court  op  Ohio,  1868. 

[18  Oh.  St.  343.] 

The  original  action  was  brought  by  the  plaintiff  to  recover  of  the 
defendants  the  value  of  an  overcoat  and  articles  in  the  pockets  thereof, 
alleged  to  have  been  lost  from  the  hotel  of  the  defendants  while  the 
plaintiff  was  a  guest  therein.  The  petition  contains  the  ordinary  aver- 
ments to  charge  upon  the  innkeepers  a  liability  for  the  loss  of  the  goods 
of  their  guest. 

The  answer  denies  the  material  averments  in  the  petition ;  and,  by 
way  of  defence,  alleges  that  the  defendants  "  had  prepared  a  place  in 
their  office  for  the  deposit  of  overcoats,  and  other  articles  of  personal 
apparel  not  left  in  the  rooms  as  baggage,  and  kept  there  a  person  to 
receive  such  articles  and  give  to  the  owner  a  check  therefor,  and  they 
required  guests  to  so  deposit  such  articles ;  of  all  which  the  plaintiff 
had  notice ;  that  the  plaintiff  neglected  and  omitted  to  leave  his  over- 
coat, with  its  contents,  in  the  custody'  of  defendants,  but  carelessly  and 
negligentl}'  hung  the  same  up  in  the  open  hall  of  the  inn  without  any 
notice  to  the  defendants,  and  without  any  knowledge  on  their  part  that 
he  had  so  negligently  exposed  the  same ;  and  that  while  so  carelessly 
exposed  by  the  plaintiff,  said  overcoat  was,  without  the  knowledge  or 


352  FULLER   V.   COATS. 

fault  of  the  defendants,  stolen,  as  they  suppose.  And  so  the  defend- 
ants saj^  that  said  overcoat  was  lost  through  and  by  reason  of  care- 
lessness and  negligence  of  the  plaintiff,  and  that  the  negligence  of  the 
plaintiff  contributed  to  the  loss  thereof." 

The  plaintiff  denies,  in  his  reply,  that  he  had  "  notice  that  defend- 
ants required  their  guests  to  deposit  overcoats  in  a  place  which  de- 
fendants had  prepared  for  thftt  purpose  ;  and  denies  that  he  negligently 
or  carelessly  left  said  overcoat  in  an  open  hall,  or  that  he  in  any  wa}', 
by  any  carelessness  of  himself,  contributed  to  its  loss." 

The  case  was  tried  to  a  jury.  On  the  trial  the  plaintiff  proved  that 
he  was  a  guest  at  the  hotel  of  the  defendants  on  the  12th  of  December, 
1865,  when  the  coat  was  lost ;  that  he  came  down  from  his  room,  late 
in  the  morning,  to  breakfast,  with  his  overcoat,  and,  instead  of  going 
to  the  office,  he  hung  up  his  coat  in  the  hall,  where  there  were  three  or 
four  rows  of  hooks,  and  went  into  breakfast  from  the  hall ;  and  that 
when  he  came  out  his  coat  was  gone.  The  plaintiff  testified,  on  cross- 
examination,  that  he  knew  there  was  a  place  at  the  office  where  carpet- 
bags and  coats  were  taken  and  checks  given  therefor,  and  that  he  had 
before  deposited  coats  at  the  office. 

One  of  the  defendants  testified  that  they  kept  a  place  back  of  the 
counter,  in  the  office,  where  the}'  kept  and  checked  coats  and  satchels ; 
that  he  had  frequently  checked  the  plaintiff's  satchel  there  before  the 
12th  of  December;  that  they  kept  some  one  there  to  receive  these 
articles  and  give  checks  therefor ;  that  the  plaintiff  had  stayed  there 
at  different  times  before  for  several  days  at  a  time  ;  and  that  when  the 
coat  was  lost,  a  general  search  was  made  for  it,  and  it  could  not  be 
found  ;  that  the  hooks  in  the  hall  were  for  hats,  and  were  placed  in  three 
or  four  rows,  beginning  two  or  three  feet  from  the  floor;  that  they  had 
large  printed  notices  in  the  office  and  some  other  rooms  (but  not  in  the 
hall),  that  "  persons  stopping  at  this  hotel  will  please  have  their  bag- 
gage checked,  carpet-bags,  and  coats  ;  and  if  they  have  any  diamonds, 
precious  stones,  watches,  or  jewelry-,  they  must  be  kept  in  the  office,  in 
order  to  make  the  proprietors  responsible." 

The  court  charged  the  jury  as  follows  : 

"  4.  The  defendants  had  a  right  to  require  that  the  plaintiff  should 
place  his  overcoat,  &c.,  in  a  designated  place  in  the  office,  or  keep  it 
in  his  own  room  when  it  is  not  on  his  own  person,  or  in  his  own  per- 
sonal custody  ;  and  if  they  did  so  require,  and  brought  this  requirement 
to  the  knowledge  of  the  plaintiff;  and  if  j'ou  shall  find  that  the  require- 
ment was  a  reasonable  one,  and  that  the  property  was  lost  in  conse- 
quence of  the  refusal  or  neglect  of  tiie  plaintiff  to  comply  with  such 
reasonable  precaution,  he  is  not  entitled  to  recover  in  this  action. 

"  5.  The  defendants  had  the  right  to  make  reasonable  rules  and 
regulations  for  their  own  protection,  and  to  limit,  to  some  extent,  their 
liability  ;  but,  in  order  to  so  limit  their  liability  in  this  case,  it  must  be 
shown  that  the  knowledge  of  the  existence  of  such  a  rule  or  regulation 
was  brought  home  to  the  plaintiff  before  the  lose  of  his  property. 


FULLER   V.    COATS.  353 

"6.  A  printed  request  merely  posted  in  the  rooms  of  the  house, 
requesting  or  asking  guests  to  leave  their  overcoats,  carpet-sacks,  or 
other  baggage  in  the  care  of  the  landlord  or  his  servants  in  the  office, 
will  not  relieve  the  defendants  from  liability  in  case  of  its  loss.  To 
have  this  effect,  the  notice  must  state  in  clear  and  unequivocal  terms 
that  they  will  not  be  responsible  for  the  loss  unless  the  property  is  left 
in  the  office,  or  other  designated  place ;  and  must  be  brought  to  the 
knowledge  of  the  guest." 

The  jury  returned  a  verdict  for  the  defendants.  The  plaintiff  moved 
for  a  new  trial,  on  the  ground  [among  others]  that  the  court  erred  in 
the  charge  to  the  jury.  The  court  overruled  the  motion  for  a  new  trial ; 
to  which  exception  was  taken.^ 

Day,  C.  J.  Three  classes  of  questions  are  raised  in  this  case  in 
which,  it  is  claimed,  the  court  below  erred :  1.  In  permitting  the  de- 
fendant to  ask  his  witnesses  on  the  trial  illegal  questions ;  2.  In  the 
refusal  of  the  court  to  charge  the  jury  as  requested  by  the  plaintiff,  and 
in  the  charge  given ;  3.   In  overruling  the  motion  for  a  new  trial. 

Nothing  practically  will  be  gained  by  considering  here  at  length  the 
separate  questions  raised  by  the  objections  of  the  plaintiff  to  the  ques- 
tions propounded  b}'  the  defendants  to  their  witnesses  on  the  trial ;  for 
some  of  the  objections  are  based  upon  grounds  that  must  be  considered 
in  another  form,  arising  upon  the  charge  to  the  jurj- ;  some  of  the 
questions  were  unobjectionable,  and  of  little  or  no  importance  ;  but 
chiefly  for  the  reason  that  the  testimony  elicited  on  all  the  questions  in 
no  way  tended  to  prejudice  the  plaintiff ;  and  for  that  reason,  under  the 
provisions  of  the  138th  section  of  the  code,  the  ruling  of  the  court  on 
that  class  of  questions  will  not  afford  sufficient  ground  to  disturb  the 
judgment. 

Did  the  court  erroneously  charge  the  jury  ? 

By  the  statute  of  this  State  the  common-law  responsibility  of  inn- 
keepers, as  to  all  goods  therein  enumerated,  is  materially  modified. 
The  goods  sued  for  in  this  case  are  not  mentioned  in  the  act ;  it  has, 
therefore,  no  application  to  the  case,  further  than  the  reason  of  the 
legislative  policy  on  which  it  is  based  may  be  regarded  in  deciding 
cases  between  conflicting  constructions  of  the  rules  of  common  law,  by 
which  this  case  must  be  determined. 

It  is  claimed  that  the  common  law  makes  an  innkeeper  an  insurer  of 
the  goods  of  his  guest,  as  it  does  a  common  carrier  of  goods,  against 
all  loss,  except  that  occasioned  by  act  of  God  or  the  public  enemy. 

The  rules  of  the  law  controlling  both  these  classes  of  liabilit}'  have 
their  foundation  in  considerations  of  public  utility ;  but  it  does  not 
therefore  follow  that  the  rule  in  every  case  is  precisely  the  same.  It 
would  seem,  rather,  that  where  the  circumstances  of  the  two  classes 
differ,  public  utility  might  reasonably  require  a  corresponding  modifi- 
cation of  the  rules  applicable  to  the  case. 

^  Only  so  much  of  the  case  as  involves  the  validity  of  the  regulations  is  given. 
—  Ed. 

2ii 


354  FULLER   V.   COATS. 

Common  carriers  ordinarily  have  entire  custody  and  control  of  the 
goods  intrusted  to  them,  with  ever}'  opportunity  for  undiscoverable 
negligence  and  fraud  ;  and  are  therefore  held  to  the  most  rigid  rules  of 
liability.  Innkeepers  may  have  no  such  custody  of  the  goods  of  their 
guests.  In  many  instances  their  custody  of  the  goods  is  mixed  with 
that  of  the  guest.  In  such  cases  it  would  be  but  reasonable  that  the 
guest,  on  his  part,  should  not  be  negligent  of  the  care  of  his  goods,  if 
he  would  hold  another  responsible  for  them.  The  case  of  a  carrier  and 
that  of  an  innkeeper  are  analogous ;  but,  to  make  them  alike,  the 
goods  of  the  guest  must  be  surrendered  to  the  actual  custody  of  the 
innkeeper ;  then  the  rule  would,  undoubtedl}',  be  the  same  in  both 
cases. 

We  are  not,  however,  disposed  to  relax  the  rules  of  liability  ap- 
plicable to  innkeepers,  nor  to  declare  that  the}'  are  different  from  those 
applying  to  carriers,  further  than  a  difference  of  circumstances  between 
innkeeper  and  guest  may  reasonably  necessitate  some  care  on  the  part 
of  the  latter. 

The  charge  of  the  court  below  is  not  inconsistent  with  a  recognition 
of  the  same  extent  of  liability  in  both  classes  of  cases ;  for  it  is  well 
settled  that  an  action  against  a  carrier  cannot  be  maintained  where 
the  plaintiff's  negligence  caused,  or  directly  contributed  to  the  loss  or 
injury.  Upon  this  theory,  and  assuming  to  the  fullest  extent  the  prima 
facie  liability  of  the  innkeeper,  by  reason  of  the  loss,  the  court  said  to 
the  jury:  *'The  only  question  for  your  consideration  is  whether  the 
plaintiff's  negUgence  caused,  or  directly  contributed  to,  the  loss  of  the 
property." 

It  was  thus  held  by  the  court,  and  conceded  by  the  counsel  for  the 
plaintiff,  that  if  the  property  was  "  lost  by  reason  of  the  negligence  of 
the  plaintiff  to  exercise  ordinary  care  for  its  safety,"  the  defendants 
were  not  liable. 

The  essential  question,  then,  between  the  parties  is,  what,  on  the 
part  of  the  guest,  is  ordinary  care,  or  what  may  be  attributed  to  him 
as  negligence. 

It  is  claimed  that  the  court  erred  in  relation  to  this  point,  in  two 
particulars:  1.  In  holding  that  the  guest  might  be  chargeable  with 
negligence,  in  the  care  of  his  goods,  in  any  case  where  they  were  not 
actually  upon  his  person  ;  2.  In  holding  that  the  innkeeper  could,  in 
any  manner,  limit  his  liability  for  the  loss  of  the  goods  of  his  guest, 
except  by  conti'act  with  him. 

If  the  guest  take  his  goods  into  his  own  personal  and  exclusive  con- 
trol, and  they  are  lost,  while  so  held  by  him,  through  his  own  neglect, 
it  would  not  be  reasonable  or  just  to  hold  another  responsible  for  them. 
This  is  conceded  to  be  true  as  to  the  clothes  on  the  person  of  the  guest, 
but  is  denied  as  to  property  otherwise  held  by  him.  There  is  no  good 
reason  for  the  distinction  ;  for  the  exemption  of  the  innkeeper  from 
liability  is  based  upon  the  idea  that  the  property  is  not  held  as  that  of 
a  gaest,  subject  to  the  care  of  the  innkeeper,  but  upon  the  responsi- 


FULLER   V.   COATS.  355 

bility  of  the  guest  alone ;  and,  therefore,  it  makes  no  difference,  in 
principle,  whether  it  is  on  his  person  or  otherwise  equally  under  his 
exclusive  control.  But  this  must  be  an  exclusive  custodj"  and  control 
of  the  guest,  and  must  not  be  held  under  the  supervision  and  care  of 
the  innkeeper,  as  wliefe  the  goods  are  kept  in  a  room  assigned  to 
the  guest,  or  other  proper  depository  in  the  house. 

The  public  good  requires  that  the  propert}-  of  travellers  at  hotels 
should  be  protected  from  loss ;  and,  for  that  reason,  innkeepers  are 
held  responsible  for  its  safety.  To  enable  the  innkeeper  to  discharge 
his  duty,  and  to  secure  the  property  of  the  traveller  from  loss,  while  in 
a  house  ever  open  to  the  public,  it  maj-,  in  many  instances,  become 
absolutely  necessarj'  for  him  to  provide  special  means,  and  to  make 
necessary  regulations  and  requirements  to  be  observed  by  the  guest,  to 
secure  the  safety  of  his  property*.  When  such  means  and  requirements 
are  reasonable  and  proper  for  that  purpose,  and  they  are  brought  to 
the  knowledge  of  the  guest,  with  the  information  that,  if  not  observed 
by  him,  the  innkeeper  will  not  be  responsible,  ordinary  prudence,  the 
interest  of  both  parties,  and  public  polic}",  would  require  of  the  guest  a 
compliance  therewith ;  and  if  he  should  fail  to  do  so,  and  his  goods  are 
lost,  solely  for  that  reason,  he  would  justl}-  and  properly  be  chargeable 
with  negligence.  To  hold  otherwise,  would  subject  a  party  without 
fault  to  the  payment  of  damages  to  a  part}-  for  loss  occasioned  by  his 
own  negligence,  and  would  be  carrj'ing  the  liabilit}'  of  innkeepers 
to  an  unreasonable  extent.  Stor3-'s  Bail.  sees.  472,  483 ;  Ashill 
V.  Wright,  6  El.  &  Bl.  890 ;  Purvis  v.  Coleman,  21  N.  Y.  Ill ;  Berk- 
shire Woolen  Co.  v.  Proctor,  7  Cush.  417. 

Nor  does  the  rule  thus  indicated  militate  against  the  well-established 
rule  in  relation  to  the  inability  of  carriers  to  limit  their  liabilit}- ;  for  it 
rests  upon  the  necessity  that,  under  different  circumstances  of  the  case, 
requires  the  guest  to  exercise  reasonable  prudence  and  care  for  the 
safety  of  his  propert}'. 

In  connection  with  the  two  foregoing  propositions,  the  correctness  of 
the  holding  of  the  court  below,  as  stated  in  the  seventh  paragraph  of 
the  charge,  is  questioned.  Without  repeating  that  paragraph  here,  it 
is  only  necessary  to  say  that  upon  the  hypothesis  there  stated,  the 
guest,  by  what  he  did  and  neglected  to  do,  would  directly  contribute  to 
the  loss  of  his  property.     The  charge  was  therefore  right. 

Taking  the  whole  charge  together,  so  far  as  it  related  to  the  case, 
and  is  controverted,  it  is  in  harmony  with  the  views  herein  expressed, 
and  must  therefore  be  approved.  It  also  follows,  from  what  has  been 
said,  that  the  court  did  not  erroneously  refuse  to  charge  the  jury  as  re- 
quested by  the  plaintiff.  The  request  contained  a  connected  series  of 
propositions,  some  of  which,  at  least,  were  unsound  in  law.  It  is  well 
settled  that  in  such  a  case  the  court  maj'  properlj'  refuse  the  whole. 


356  MONTGOMERY   V.   BUFFALO   RAILWAY   COMPANY. 


MONTGOMERY  v.  BUFFALO  RAILWAY  COMPANY. 

CouKT  OF  Appeals  of  New  York,  1900. 

[165  N.  Y.  139.] 

This  action  was  brought  b}'  the  plaintiff  against  the  defendant,  a 
street  railway'  compan\',  to  recover  damages  for  an  assault  and  battery, 
alleged  to  have  been  committed  upon  him  by  a  conductor  in  forcibU' 
expelling  him  from  the  car.  He  had  paid  his  fare,  upon  entering  one 
of  the  defendant's  cars  upon  a  connecting  line,  and  with  a  transfer 
ticket,  got  upon  the  car  in  question.  He  placed  himself  upon  the  rear 
platform  and  tendered  his  transfer  ticket  to  the  conductor.  One  of 
the  company's  rules  provided  that  conductors  should  **not  allow  pas- 
sengers to  sit,  or  stand  on,  or  to  crowd  the  rear  platform,  but  will 
politel}'  request  them  to  take  seats  or  to  stand  inside  the  car,"  and  the 
conductor,  calling  plaintiflTs  attention  to  it,  directed  him  to  go  inside 
the  car.  The  plaintiff  declined  to  do  so ;  stating  that  he  had  a  sick 
headache,  was  nauseated,  and  that  he  expected  to  be  affected  actively 
b}*  the  nausea  at  any  moment.  The  conductor,  however,  insisted  upon 
his  compliance  with  the  rule  and,  the  plaintiff  refusing  compliance,  the 
car  was  stopped  and  the  plaintiff  was  ejected  therefrom ;  but  with  no 
excessive  force,  or  physical  injury. 

Grat,  J.  The  company  not  only  had  the  right,  but  it  was  bound, 
to  make  rules  and  regulation  to  insure  the  safe,  effective,  and  comfort- 
able operation  of  its  corporate  business,  and  whether  any  particular  rule 
is  lawful  and  reasonable  is  a  question  of  law  for  the  court.  The  appel- 
lant concedes  that  the  rule  of  the  company  was  a  reasonable  one  and 
thus  the  question  is  whether,  because  it  was  enforced  by  the  conductor, 
in  the  expulsion  of  the  plaintiff  from  the  car  upon  his  refusal  to  sub- 
mit to  it,  the  company  can  now  be  made  answerable  in  damages  by 
reason  of  the  conductor's  action.  The  proposition  would  seem  to  furn- 
ish its  own  answer. 

The  appellant,  however,  insists  that,  even  if  this  rule  was  a  reason- 
able regulation  of  the  company,  all  rules,  even  if  reasonable,  "  must 
have  their  exceptions,"  and  whether  it  was  reasonable  to  enforce  the 
rule  upon  this  occasion,  was  a  question  to  be  passed  upon  by  a  jury. 
In  other  words,  it  is  claimed  that  the  right  of  enforcement  may  depend 
upon  the  particular  circumstances  and,  as  the  plaintiff  had  an  excuse 
for  non-compliance,  in  the  present  case,  its  reasonableness,  or  that 
of  the  conductor's  conduct,  became  a  question  for  the  determination 
of  the  jury.  I  am  unable  to  assent  to  the  proposition.  I  think  that, 
if  the  rule  was  a  reasonable  one,  the  passenger  was  bound  to  submit  to 
it  and  that  it  was  the  duty  of  the  conductor  to  enforce  it.  Therefore, 
in  ejecting  him  from  the  car  upon  his  refusal  to  submit,  the  conductor 


DANIEL   V.    NEW   JERSEY   STREET  RAILWAY  CO.  357 

was  acting  lawfully  in  the  discharge  of  his  duty.  The  passenger,  by 
his  conduct,  had  forfeited  his  right  to  be  carried  any  further.  In 
Hibbard  v.  N.  Y.  &  E.  R.  R.  Co.  (15  N.  Y.  455),  an  early  and  lead- 
ing case,  the  question  was  full}'  discussed  and  its  doctrine  has  been 
followed  in  this  court.  (Pease  v.  D.,  L.  &  W.  R.  R.  Co.,  101 
N.  Y.  367.)  Barker  v.  Central  Park,  N.  &  E.  R.  R.  R.  Co.  (151 
N.  Y.  237),  is  a  recent  case,  in  which  the  right  of  the  carrier  to  make 
and  to  enforce  its  reasonable  rules  is  distinctly  recognized.  It  might 
be  observed  that  there  is  quite  a  difference  between  such  a  case  as  the 
appellant's  counsel  mentions,  where  a  passenger  is  ejected  for  failure 
to  produce  his  ticket  upon  the  conductor's  request,  which  another  con- 
ductor had  previously  taken  up  and  retained,  and  such  a  case  as  this." 
In  the  former  case  it  could  be  argued,  with  more  force,  that  the  pas- 
senger's inabilit}'  to  compl}'  with  the  conductor's  request  was  caused  by 
the  mistake,  or  fault  of  another  of  the  company's  servants,  and  the 
theory'  of  the  corporate  liability  would  be  rested  upon  different  propo- 
sitions. 

A  railway  company  is  not  obliged  to  carry  persons,  unless  they  are 
willing  to  submit  to,  and  to  be  bound  b}',  the  reasonable  rules  and  regu- 
lations which  it  has  established.  The  plaintiff,  if  in  the  phj-sical  con- 
dition described  b}-  him  upon  the  da}-  in  question,  was  not  obliged  to 
travel  upon  the  defendant's  street  car ;  but  if  he  chose  to  do  so,  he  was 
bound  to  submit  to  its  regulations.  He  has  no  suflBcient  reason  in 
law  for  complaining,  because  the  conductor  performed  his  dut}'  and 
compelled  him  to  leave  the  car. 

I  think  the  order  and  judgment  were  right  and  should  be  affirmed, 
with  costs. 

Parker,  C.  J.,  O'Brien,  Landon  and  Werner,  JJ.,  concur ;  Haight 
and  CuLLEN,  JJ.,  not  voting.  Order  and  judgment  affirmed. 


DANIEL  V.  NEW  JERSEY  STREET  RAILWAY  COMPANY. 
Court  of  Errors  of  New  Jersey,  1900. 

[64  N.  J.  L.  603.] 

Garrison,  J.  The  plaintiff,  carrying  in  his  arms  in  plain  view  a 
small  goat,  got  on  one  of  the  cars  of  the  defendant  and  paid  his  fare ; 
later  he  paid  a  second  fare  and  received  from  the  conductor  a  token 
that  entitled  him  to  be  transferred  to  another  car  of  the  defendant  corn- 
pan}'.  At  the  proper  junction  he  presented  this  token  to  the  conductor 
on  the  transfer  car  who  refused  to  allow  him  to  board  the  car  with  the 
goat.  This  was  the  plaintiff's  case.  A  regulation  of  the  defendant 
corporation  forbidding  the  carrying  of  animals  in  its  cars  was  proved, 
and  the  case  went  to  the  jury.  The  jury  were  told  by  the  trial  court 
that  if  the  regulation  in  question  was  an  unreasonable  one,  the  defend- 


358  DAIQEL  V.   NEW  JERSEY   STREET  RAILWAY  CO. 

ant  would  be  liable  in  damages  for  enforcing  it,  and  that  if  it  was  a 
reasonable  one  the  defendant,  before  enforcing  it,  must  call  the  atten- 
tion of  the  passenger  to  it,  which  was  not  done  in  this  case.  In  effect 
this  directed  a  verdict  for  the  plaintiff,  without  regard  to  the  finding  of 
the  jur}'  upon  the  onl}'  question  submitted  to  it,  viz.,  whether  the  regu- 
lation of  the  defendant  allowing  no  animals  to  be  carried  in  their  cars 
was  a  reasonable  one. 

Inasmuch  as  the  court  is  unanimously  of  the  opinion  that  it  was  error 
to  submit  this  question  to  the  jury,  the  judgment  will  be  reversed  for 
that  error  without  reference  to  the  assignment  toucliing  the  necessity 
of  giving  notice  of  a  reasonable  regulation  before  enforcing  it. 

The  unanimity  with  which  this  result  is  reached  does  not,  however, 
extend  to  the  line  of  reasoning  pursued  in  reaching  it.  Hence,  no  gen- 
eral rule  upon  the  question  of  the  relative  functions  of  court  and  jury 
with  respect  to  the  reasonableness  of  corporate  regulations  can  be  laid 
down  at  this  time.  A  majority  of  the  court,  however,  are  of  opinion 
that  the  defendant  company  might  lawfully  adopt  some  regulation  with 
respect  to  the  carrying  of  animals  on  its  cars,  and  that  the  reasonable- 
ness of  such  a  rule,  would  be  a  question  for  the  trial  court  and  not  for 
the  jur}'.  Whether,  as  a  class,  questions  as  to  the  reasonableness  of 
corporate  regulations  are  for  the  jury,  to  be  taken  from  it  only  when 
deemed  to  be  free  from  doubt ;  or  whether  they  are  primarih'  court 
questions,  to  be  left  to  jurors  onh*  when  some  other  standard  than  that 
of  reasonableness  enters  into  the  test  of  corporate  dut}',  is  a  point  upon 
which  the  majority  is  not  agreed  i7iter  sese. 

It  suffices  for  the  decision  of  the  present  case  to  say  that  in  either  of 
these  views  it  was  error  to  leave  to  the  jury  the  reasonableness  of  this 
regulation.     It  should  have  been  decided  b^'  tlie  court. 

To  this  extent  the  cases  of  State  v.  Overton,  4  Zab.  435  ;  Morris  & 
Essex  Railroad  Co.  v.  Ayres,  5  Dutcher,  393  ;  Compton  v.  Van  Volken-, 
burgh,  4  Vroom,  134,  are  disapproval ;  although  the  learned  judge  who 
tried  the  case  did  right  to  follow  these  Supreme  Court  decisions  for  the 
reasons  given  b}-  Chief  Justice  Beaslet  in  the  Compton  case. 

It  is  thought  best  to  say  that  the  question  of  the  corporate  authority' 
of  the  defendant  to  carry  animals  on  its  cars  is  not  involved  in  the 
decision  of  this  case. 

Let  the  judgment  be  reversed. 


DICKERMAN   V.   ST.    PAUL   UNION   DEPOT   COMPANY.  359 


DICKERMAN  v.  ST.  PAUL  UNION  DEPOT  COMPANY. 
Supreme  Court  op  Mississippi,  1890. 

[44  Minn.  433.] 

GiLFiLLAN,  C.  J.  No  claim  is  made,  and  none  could  well  be  made, 
against  the  reasonableness  of  the  rules  of  the  defendant  requiring 
persons  passing  through  the  gates  for  the  purpose  of  taking  trains  to 
exhibit  their  tickets  to  the  gate-keeper  and  have  them  punched  by 
him,  and  providing  that  no  passenger  shall  be  allowed  to  pass  out  of 
any  gate  after  the  train  indicated  by  his  ticket  has  started,  or  to 
board  any  train  while  in  motion.  Sucli  or  similar  rules  would  seem 
absolut>ely  necessary  to  preserve  to  the  defendant  control  of  its  grounds, 
and  to  enable  it  to  receive  and  discharge  passengers  with  order,  and  to 
the  safet}-,  comfort,  and  convenience  of  the  passengers.  All  persons 
having  notice  of  such  rules,  and  a  reasonable  opportunity  to  comply 
with  them,  are  bound  to  observe  them  in  order  to  have  a  right  to  pass 
through  the  gates  or  to  take  a  train  at  defendant's  depot ;  and  the  de- 
fendant has  a  right  to  enforce  such  rules,  and  to  prevent  their  violation, 
and  to  use  such  force  as  ma}^  be  reasonably  necessary  to  that  end.  If 
in  no  such  case  it  may  use  force,  then  the  right  to  enforce  the  rules  and 
prevent  their  violation  is  but  a  barren  right. 

On  the  occasion  which  furnished  the  subject-matter  of  this  action, 
the  plaintiff,  while  the  gate-keeper  was  occupied  in  inspecting  and 
punching  the  tickets  of  passengers  who  were  going  through  the  gate, 
passed  through  without  presenting  his  ticket  to  be  inspected  and 
punched,  and  without  the  consent  of  the  gate-keeper,  who  immediately 
seized  him  by  the  coat,  demanding  to  see  his  ticket,  and,  on  his  showing 
his  ticket,  told  him  he  could  not  go,  and,  as  plaintiff  tells  it,  on  his  per- 
sisting in  going,  held  him  till  the  train  he  was  intending  to  take  had 
passed  out  of  the  depot.  The  ticket  was  for  the  short-line  from  St.  Paul 
to  Minneapolis,  on  the  Chicago,  Milwaukee  &  St.  Paul  Railway. 
Whether  that  train  had  alread}'  started  at  the  time  when  plaintiff  showed 
his  ticket,  the  evidence  was  conflicting,  making  it  a  question,  so  far  as 
material,  for  the  jury. 

The  theory  of  the  law  of  the  case  claimed  by  plaintiff  is  presented  by 
one  of  his  requests  to  instruct  the  jury  as  follows  :  "  No  violation  of 
anj'  rule,  regulation,  or  practice,  on  the  part  of  the  plaintiff,  would 
justif}'  or  excuse  the  seizure  of  the  plaintiff  against  his  will,  after  he 
had  passed  through  the  gate."  Without  determining  whether,  in  passing 
through  the  gate  in  violation  of  the  rule  of  the  defendant,  the  plaintiff 
became  a  trespasser  upon  that  part  of  the  depot  without  the  gate,  we 
will  sa}'  that  the  proposition  of  this  request  is  incorrect.  It  implies 
that  the  instant  plaintiff  wrongfully  got  through  the  gate  his  obligation 
to  comply  with  the  rule  and  right  of  defendant  to  insist  on  compliance 
with  it  ceased.     The  gate-keeper  had  the  right  to  stop  him  at  the  gate, 


360  HART  V.   SOUTHERN  RAILWAY  COMPANY. 

and  demand  sight  of  his  ticket  to  be  punched,  and,  if  necessary  in  order 
to  stop  him  for  that  purpose,  had  the  right  to  take  hold  of  him,  and  this 
right  did  not  cease  merely  because  the  plaintiff  had  wrongfully  got 
across  the  line  of  the  gate.  The  keeper  still  had  the  right  to  enforce 
the  rule  ;  certainly,  while  plaintiff  was  so  near  the  gate  as  to  be  practi- 
cally at  it,  which  was  the  fact  in  this  case. 

The  theory  of  law  on  which  the  court  below  put  the  case  to  the  jur^' 
is  presented  in  a  part  of  its  general  charge  excepted  to  by  plaintiff. 
After  charging  that  if,  after  passing  through  the  gate,  the  plaintiff 
could  have  boarded  his  train  before  it  started  or  was  in  motion,  then 
he  is  entitled  to  recover  at  least  nominal  damages,  it  said :  "If,  on  the 
other  hand,  you  find  from  the  evidence  that  the  train  plaintiff  was  in- 
tending to  take  had  started  before  he  passed  through  the  gate,  or  that 
after  he  passed  through  the  gate  the  train  started  and  was  in  motion 
before  plaintiff  could  have  reached  it  and  got  on  board  if  he  had  not 
been  detained  by  defendant  or  interfered  with  by  the  gate-man,  and  if 
you  further  find  from  the  evidence  that  no  more  force  or  violence  was 
used  by  the  gate-keeper  than  to  detain  plaintiff,  and  that  he  was  detained 
no  longer  than  was  necessary  to  prevent  his  boarding  the  train  when  it 
was  in  motion,  then  the  plaintiff  is  not  entitled  to  recover."  This 
charge  is  to  be  taken  in  connection  with  the  state  of  the  evidence,  even 
that  of  plaintiff  himself,  which  shows,  beyond  any  question,  that  he, 
while  detained  by  the  gate-man,  insisted  upon  taking  the  train  in  ques- 
tion, and  would,  had  he  not  been  prevented,  have  attempted  to  take  it 
even  though  in  motion.  To  have  done  so  would  have  violated  the  rule 
of  the  defendant,  that  no  passenger  shall  be  allowed  to  board  any  train 
while  in  motion,  a  rule  which  the  defendant  had  the  same  right  to  en- 
force as  to  enforce  that  requiring  passengers  to  exhibit  their  tickets  in 
passing  through  the  gates.  The  charge  excepted  to  was  only  to  the  ef- 
fect that  the  defendant  had  the  right  to  use  such  force  as  was  necessary 
to  prevent  a  violation  of  the  rule  ;  that  is,  to  prevent  parties  boarding 
trains  while  in  motion.     And  that  proposition  is  correct. 

Order  affirmed. 


HART  V.   SOUTHERN  RAILWAY  COMPANY. 
Supreme  Court  of  Georgia,  1904. 

[119  Go.  927.] 

Lamar,  J.  This  suit  was  for  wrongful  expulsion,  and  not  for  dam- 
ages inflicted  upon  the  plaintiff  as  a  result  of  his  being  compelled  to 
alight  from  a  moving  train.  The  fact  that  one  actually-  purchased  a 
ticket,  and  that  this  was  known  to  the  agent  who  sold  it,  or  to  the 
gate-keeper  who  examined  it,  or  to  emplo^'ees  on  the  train  who  saw  it, 


HART   V.  SOUTHERN   RAILWAY   COMPANY.  361 

would  not  relieve  the  passenger  of  the  obligation  to  surrender  it  to  the 
conductor.  Tickets  vary  in  their  terms.  Some  are  good  only  on  cer- 
tain trains ;  others  onl}^  on  particular  dates  ;  others  require  validation. 
The  mere  fact  that  the  plaintiff  has  a  ticket  does  not,  therefore,  neces- 
sarily establish  his  right  to,  be  transported  on  a  given  train.  These 
matters  must  be  passed  on  by  the  conductor,  and  not  by  other  em- 
ployees who  are  not  charged  with  this  duty  by  the  company-.  When 
the  conductor  makes  his  demand,  he  is  entitled  to  have  the  ticket 
surrendered.  He  cannot  be  required  to  hear  evidence  or  investigate 
the  bona  fides  of  the  passenger's  excuse  for  its  non-deli ver\',  nor  to 
wait  until  he  arrives  at  the  next  station  and,  by  telegraphic  correspon- 
dence with  the  selling  agent,  undertake  to  verify  the  correctness  of 
the  plaintiffs  statement,  or  determine  the  character  and  validitj-  of  the 
ticket  sold.  It  is  manifest  that  such  course  would  necessarily  give 
rise  to  dela}',  and  seriously  interfere  with  the  operation  of  trains  and 
the  rights  of  the  travelling  public.  Had  the  plaintiff's  money  blown 
out  of  his  hand,  it  is  evident  that  his  misfortune  would  have  to  fall 
upon  himself  and  not  upon  the  company.  Such  loss  would  not  have  pre- 
vented his  lawful  eviction.  The  same  result  would  follow  where  the 
ticket  itself  was  lost ;  for  it  might  have  come  into  the  hands  of  another, 
and  the  company  might  thereby-  have  been  compelled  to  carry  two 
passengers  for  one  fare.  Besides,  any  rule  allowing  an  excuse  as  a 
substitute  for  a  ticket  would  give  rise  to  so  much  uncertainty  and  so 
many  possibilities  of  fraud  that  the  courts  have  uniformly  held  that  the 
failure  to  pay  the  fare  or  produce  the  ticket  warrants  an  eviction.  In 
fact  the  plaintiff  in  error  concedes  the  general  rule  to  be  that  the  pas- 
senger must  produce  his  ticket,  pay  his  fare,  or  suffer  expulsion.  He 
insists,  however,  that  the  special  circumstances  take  this  case  out  of 
the  general  rule.  We  fail  to  find  an}-  case  warranting  such  a  holding. 
Those  cited  by  him,  in  32  L.  R.  A.  193,  and  56  L.  R.  A.  224,  as  well 
as  Pullman  P.  C.  Co.  v.  Reed,  75  111.  125,  were  on  facts  essentially 
different.  See,  on  the  general  subject,  L.  &  N.  R.  Co.  v.  Fleming,  14 
Lea,  128 ;  Rogers  v.  Atlantic  City  R.  Co.,  34  Atl.  11  ;  Fetter  on  Car- 
riers, §  279.  Compare  Southern  R}-.  Co.  v.  De  Saussure,  116  Ga.  53; 
G.  S.  &  F.  R}'.  Co.  V.  Asmore,  88  Ga.  529.  Pleadings  are  to  be  strictly 
construed  against  the  pleader.  Here  it  afHrmatively  appears  that  plain- 
tiff did  not  have  funds  with  which  to  pay  the  cash  fare.  The  general 
demurrer  having  been  sustained,  and  the  judgment  affirmed  here,  there 
is  nothing  to  amend  by.  It  is  not  like  the  case  where  the  demurrer 
was  overruled  in  the  lower  court  and  the  judgment  reversed,  nor  like 
the  case  where  the  demurrer  was  sustained  or  should  have  been  sus- 
tained only  on  a  special  ground  not  concluding  the  merits.  Central  R. 
V.  Patterson,  87  Ga.  646;  Savannah  Ry.  y.  Chaney,  102  Ga.  817; 
Brown  v.  Bowman,  119  Ga.  153.  There  is  nothing  in  the  facts  here  to 
require  the  exercise  of  any  discretionary  power  by  this  court  to  permit 
such  amendment. 


362  EEESE   V.   PENNSYLVANIA  RAILROAD. 

Judgment  affirmed.     All  the  Justices  concur. 


REESE  V.  PENNSYLVANIA  RAILROAD. 
Supreme  Court  of  Pennsylvania,  1890. 

[131   Pa.  422.] 

On  October  31,  1888,  L.  B.  D.  Reese  brought  trespass  against  the 
Pennsjlvania  Railroad  Company  to  recover  damages  for  the  alleged 
unlawful  ejecting  of  the  plaintiff  from  a  passenger  train  of  the 
defendant.     Issue. 

At  the  trial  on  September  17,  1889,  the  following  facts  were  shown : 
About  eleven  o'clock  on  the  evening  of  October  24,  1888,  the  plaintiff, 
in  compan}'  with  two  friends,  boarded  a  passenger  train  of  the  defendant 
company  at  East  Liberty  station,  in  the  city  of  Pittsburgh,  for  the  pur- 
pose of  going  to  the  Union  station  in  said  cit}'.  The  testimony  for  the 
plaintiff  tended  to  prove  that  they  arrived  at  East  Liberty  station  just 
as  the  train  was  about  to  start,  and  too  late  to  get  tickets ;  while 
witnesses  for  the  defendant  testified  that  the  plaintiff  and  his  com- 
panions were  at  the  station  some  minutes  before  the  train  left.  The 
ticket  office  at  East  Libert}-  was  kept  open  the  usual  length  of  time 
prior  to  the  departure  of  that  train,  and  afforded  all  persons  who  were 
at  the  station  before  it  started  an  opportunity  to  procure  tickets. 

The  defendant  company  was  incorporated  by  Act  of  April  13,  1846, 
P.  L.  312,  §  21  of  which  provides  that  "  in  the  transportation  of  pas- 
sengers, no  charge  shall  be  made  to  exceed  three  cents  per  mile  for 
through  passengers,  and  three  and  one-half  cents  per  mile  for  way 
passengers." 

After  the  train  had  started,  the  conductor  called  upon  the  plaintiff 
for  his  ticket,  when  the  plaintiff  stated  that  he  had  none  and  tendered 
to  the  conductor  the  sum  of  fourteen  cents  in  cash.  The  distance 
between  the  East  Liberty  and  Union  stations  is  four  and  one  half 
miles,  and  the  regular  and  uniform  fare  charged  by  the  defendant 
between  those  points  was  fourteen  cents,  being  at  the  rate  of  three 
cents  a  mile.  The  company,  however,  had  a  regulation  requiring  pas- 
sengers without  tickets  to  pay  to  the  conductor,  in  addition  to  the 
regular  fare  of  three  cents  per  mile,  the  additional  sum  of  ten  cents. 
The  amount  so  to  be  paid  in  excess  of  the  regular  fare  was  uniform 
in  all  cases,  irrespective  of  the  distance  the  passenger  was  travelling, 


REESE   V.   PENNSYLVANIA    RAILROAD.  363 

and  upon  its  payment  the  conductor  was  required  to  give  to  the  pas- 
senger a  memorandura  or  check,  signed  by  the  general  passenger  agent 
of  the  company,  redeemable  at  ten  cents  on  presentation  at  any  ticket 
office  of  the  company-  along  its  road.  This  memorandum  is  known  as 
a  "■  duplex  ticket,"  the  conductor  being  required  to  retain  and  forward 
to  the  auditor  of  passenger  receipts  a  duplicate  of  each  one  issued. 
It  is  printed  upon  a  form  so  arranged  that  the  stations  from  and  to 
which  fare  is  collected  can  be  indicated  upon  it  by  punch  marks,  and 
conductors  are  required  to  do  this  in  all  cases.  Of  this  regulation, 
notice  was  given  to  the  public  by  printed  cards  posted  at  the  company's 
ticket  offices. 

Acting  under  the  regulation  of  the  company  respecting  the  paj-ment 
of  cash  fares,  the  conductor  refused  to  accept  the  fourteen  cents 
tendered  him  by  the  plaintiff  and  demanded  twenty-four  cents.  The 
plaintiff  declined  absolutely  to  pay  more  than  fourteen  cents,  whereupon 
he  was  put  off  the  train  at  Roup  station. 

The  jury  rendered  the  following  verdict:  "We  find  for  the  plaintiff 
in  the  sum  of  two  hundred  and  fifty  dollars  ($250).  And  we  have 
further  answered  the  annexed  questions  submitted  to  us  for  answer  as 
part  of  the  verdict : 

"1.  Did  the  plaintiff,  Mr.  Reese,  on  the  evening  in  question,  arrive 
at  the  East  Liberty  station  in  time  to  procure  a  ticket  before  getting 
on  the  train  ? 

"No." 

"  2.  Did  the  conductor,  when  demanding  from  the  plaintifl'  twenty- 
four  cents  fare,  or  before  putting  him  off  the  train,  inform  him  that  he 
would  obtain  a  receipt  entitling  him  to  be  repaid  ten  cents  of  the  fare 
on  presentation  at  the  proper  office  ;  or  did  Mr.  Reese  know  that  such 
was  the  regulation? 

"  No." 

Judgment  having  been  entered  upon  the  verdict,  the  defendant  took 
this  appeal.^ 

Mitchell,  J.,  the  right  of  railroad  companies  to  make  reasonable 
regulations,  not  only  as  to  the  amounts  of  fares,  but  as  to  the  time, 
place,  and  mode  of  payment,  is  unquestionable.  This  right  includes 
the  right  to  refuse  altogether  to  carry  without  the  previous  procure- 
ment of  a  ticket.  Lake  Shore,  &c.  Ry.  Co.  v.  Greenwood,  79  Pa.  373. 
That  case  arose  upon  a  special  regulation  as  to  the  carriage  of  pas- 
sengers upon  freight  trains ;  but  there  is  no  appreciable  distinction 
between  it  and  a  general  regulation  as  to  all  passengers.  Both  rest  on 
the  common-law  principle  that  requires  payment  or  tender  as  an  indis- 
pensable preliminary  to  holding  a  carrier  liable  for  refusal  to  carry,  and 
on  the  manifest  and  necessary  convenience  of  business,   where  the 

^  The  points  assigned  for  error  were:  1,  refusal  of  the  trial  court  to  charge  that 
the  regulation  was  reasonable  and  legal ;  2,  charge  of  the  court  that  the  amonnt 
demanded  was  in  excess  of  the  statutory  amount. 

The  statement  of  facts  has  been  abridged  and  arguments  of  counsel  omitted. — Ed. 


364  BEE8E   V.   PENNSYLVANIA   RAILROAD. 

number  of  passengers  is  liable  to  be  large  and  the  time  for  serving 
them  short. 

So,  too,  the  authorities  are  uniform  that  companies  may  charge  an 
additional  or  higher  rate  of  fare  to  those  who  do  not  purchase  tickets 
before  entering  the  cars.  Crocker  v.  Railroad  Co.,  24  Conn.  249  ; 
Swan  V.  Railroad  Co.,  132  Mass.  116 ;  Billiard  v.  Goold,  34  N.  H.  241 ; 
Stephen  v.  Smith,  29  Vt.  160 ;  State  v.  Goold,  53  Me.  279  ;  State  v. 
Chovin,  7  Iowa,  208 ;  Du  Laurans  v.  Railroad  Co.,  15  Minn.  49  ;  State 
V.  Hungerford,  39  Minn.  6  (34  Amer.  &  Eng.  R.  Cas.  265),  and  note; 
Chicago,  &c.  R.  Co.  v.  Parks,  18  III.  460 ;  Pullman  Co.  v.  Reed,  75  111. 
130 ;  Railroad  Co.  v.  Skillman,  39  Ohio,  451  ;  Forsee  v.  Railroad  Co., 
63  Miss.  67.  And  it  may  be  noted,  in  response  to  one  of  the  most 
urgently  pressed  arguments  of  the  defendant  in  error,  that  the  reasons 
almost  uniformly  given  in  support  of  this  long  line  of  decisions  include 
the  furthering  of  the  honest,  orderly,  and  convenient  conduct  b}*  the 
railroad  compan}*  of  its  own  business. 

The  regulation  in  question  in  the  present  case,  is  not  in  itself  un- 
reasonable or  oppressive.  In  regard  to  the  traveller,  it  is  scarcel}"  just 
ground  of  complaint  that  he  has  to  present  his  refunding  ticket  at  the 
end  of  his  journey,  instead  of  getting  an  ordinary  ticket  at  the  start. 
The  inconvenience,  if  any,  is  the  result  of  his  own  default.  With 
reference  to  the  other  passengers,  and  still  more  to  the  railroad  com- 
pany, the  regulation  is  conducive  to  the  rapid,  orderly,  and  convenient 
despatch  of  the  conductor's  part  in  the  collection  of  fares,  and  thus  to 
leaving  him  free  for  the  performance  of  his  other  duties  in  connection 
with  the  stops  at  stations,  the  entrance  and  exit  of  passengers,  and 
the  general  supervision  of  the  safety  and  comfort  of  those  under  his 
care. 

If,  therefore,  the  company  may  refuse  to  carry  at  all  without  a  ticket, 
it  ma}'  fairly  refuse  under  the  far  less  inconvenient  alternative  to  the 
traveller  of  putting  him  to  the  trouble  of  going  to  an  office  to  get  his 
excess  refunded.  If  the  companj*  may  charge  those  failing  to  get  a 
ticket  an  additional  price,  and  keep  it,  certainl}'  they  msiy  charge  such 
price  and  refund  it ;  and,  as  the  regulation  is  not  in  itself  unreasonable 
or  oppressive,  or  needlessly  inconvenient  to  the  traveller,  its  validit}', 
upon  general  principles  and  on  authority,  would  seem  to  be  bej-ond 
question. 

These  views  were  conceded  by  the  learned  judge  below,  and  are  not 
seriously  questioned  b}'  counsel  here.  But  the  decision  was  based  upon 
the  view  that  the  extra  ten  cents  imposed  by  this  regulation  is  a  part 
of  the  fare,  and  makes  it  higher  than  the  rate  allowed  by  the  act  of 
incorporation  of  the  company.  The  language  of  the  act  is,  "  In  the 
transportation  of  passengers  no  charge  shall  be  made  to  exceed  .  .  . 
three  and  one-half  cents  per  mile  for  way  passengers."  As  the  dis- 
tance from  East  Liberty  station  to  the  Union  station  in  Pittsburgh  is 
four  and  one-half  miles,  and  the  regular  fare  fourteen  cents,  it  is  ad- 
mitted that  the  extra  ten  cents  is  in  excess  of  the  charter  rate,  if  it  is 


REESE   V.   PENNSYLVANIA   RAILROAD.  365 

a  "  charge  for  transportation"  within  the  meaning  of  the  act.  Should 
it  be  so  regarded?  "  Charge"  is  a  word  of  ver}'  general  and  varied 
use.  Webster  gives  it  thirteen  different  meanings,  none  of  which, 
however,  expresses  the  exact  sense  in  which  it  is  used  in  this  charter. 
The  great  dictionary  of  the  Philological  Society,  now  in  course  of 
publication,  gives  it  twenty  separate  principal  definitions,  besides  a 
nearly  equal  number  of  subordinate  variations  of  meaning.  Of  these 
definitions,  one  (10  b)  is,  "The  price  required  or  demanded  for  service 
rendei-ed,  or  (less  usually)  for  goods  supplied ;"  and  this  expresses 
accurately'  the  sense  of  the  word  in  the  present  case.  The  essence  of 
the  meaning  is  that  it  is  something  required,  exacted,  or  taken  from 
the  traveller  as  compensation  for  the  service  rendered,  and,  of  course, 
something  taken  permanently,  —  not  taken  temporarily',  and  returned. 
The  purpose  of  the  restriction  in  the  charter  is  the  regulation  of  the 
amount  of  fares,  not  of  the  mode  of  collection ;  the  protection  of  the 
traveller  from  excessive  demands,  not  interference  with  the  time,  place, 
or  mode  of  payment.  These  are  mere  administrative  details,  which 
depend  on  varying  circumstances,  and  are  therefore  left  to  the  ordinary 
course  of  business  management.  We  fail  to  see  anything  in  the  present 
regulation  which  can  properly  be  treated  as  an  excessive  charge,  within 
the  prohibition  of  the  charter. 

Nor  is  there  any  force  in  the  objection  that  this  regulation  is  un- 
reasonable. It  is  said  not  to  be  general,  fair,  and  impartial,  because 
it  provides  that  as  to  passengers  getting  on  the  train  at  stations  where 
there  is  no  ticket  office,  &c.,  or  on  trains  where,  on  account  of  the 
excessive  rush  of  business,  it  is  impossible  to  issue  the  refunding 
check,  the  collection  of  the  excess  shall  be  omitted.  The  objection 
overlooks  the  necessar}'  qualifications  to  the  validity  of  such  a  regula- 
tion. All  the  cases  are  agreed  that  the  regulation  would  be  unreason- 
able, and  therefore  void,  unless  the  carrier  should  give  the  passenger  a 
convenient  place  and  opportunity  to  buy  his  ticket  before  entering  the 
train.  This  part  of  the  regulation  merely  puts  in  express  words  a 
necessary  exception  which  the  law  would  otherwise  imply.  So,  as  to 
the  excessive  rush  of  business.  Reasonableness  depends  on  circum- 
stances. To  collect  the  extra  amount  and  issue  return  checks  to  as 
many  passengers  as  the  conductor  could  reach  in  time,  and  let  all 
others  go  free  entirely,  would  be  much  more  unreasonable  than  to 
treat  all  ahke  and  dispense  with  the  regulation  for  the  time  being. 
Necessity  modifies  the  application  of  all  rules,  and  ihere  is  nothing 
unreasonable  in  requiring  the  conductor  to  exercise  suflflcient  foresight 
to  see  whether  he  can  perform  the  prescribed  dutj'  in  the  available 
time,  and  investing  him  with  the  discretion  to  omit  it  altogether,  if,  in 
his  judgment,  he  cannot  perform  it  fully. 

No  authorities  precisely  in  point  have  been  found  upon  either  side. 
The  cases  cited  by  the  defendant  in  error,  from  Kentucky  and  Ohio, 
are  widely  distinguishable,  as  they  were  cases  of  absolute  charge  be- 
yond the  charter  limit,  without  any  provision  for  return  of  the  excess 


366  FORSEE   V.   ALABAMA   GREAT   SOUTHERN   RAILROAD. 

to  the  traveller.  But  on  well-settled  principles  we  are  of  opinion  that 
the  regulation  is  reasonable  in  itself,  and  not  in  violation  of  the  re- 
striction in  the  act  of  incorporation.  The  defendant's  first  point  should 
therefore  have  been  affirmed.  Judgment  reversed. 


FORSEE  V.  ALABAMA  GREAT  SOUTHERN  RAILROAD. 

Supreme  Court  of   Mississippi,  1885. 
[63  Miss.  66.] 

About  nine  o'clock  p.  m.,  on  September  20,  1884,  S.  P.  Forsee  went 
to  tlie  ticlcet  office  of  the  Alabama  Great  Southern  R.  R.  Co.  at 
Toomsuba,  for  the  purpose  of  bu3ing  a  ticket  and  taking  passage  for 
Meridian  on  that  corapan^-'s  train,  which  was  due  at  Toomsuba  at 
about  half- past  nine  o'clock  p.  m.  The  depot  was  dark,  no  ticket 
agent  could  be  seen  or  found,  and  as  it  was  raining  slightl}'  Forsee  and 
his  companion,  one  Poole,  left  the  depot,  where,  as  they  claimed,  there 
was  no  adequate  shelter,  and  went  over  to  a  store  near  by,  but  from 
which  they  could  still  view  the  depot  and  watch  for  the  train.  No  one 
was  seen  about  the  depot  until  the  train  approached,  when  a  man  with 
a  mail  bag  ran  out  Forsee  seized  him  and  said  to  him  that  he  had 
tried  to  get  a  ticket  but  had  not  been  able  to  find  any  one  at  the  depot. 
The  man,  who  proved  to  be  the  agent,  replied  that  it  was  then  too  late. 
Forsee  went  to  the  conductor  and  told  him  that  he  had  been  unable  to 
bu}'  a  ticket  because  the  agent  was  not  on  hand.  Forsee  then  boarded 
the  train,  and  when  the  conductor  came  to  him  for  his  fare  again  told 
him  he  had  no  ticket  and  why  he  had  failed  to  get  one,  but  tendered 
him  thirty-five  cents,  the  amount  of  the  regular  ticket  rate  between 
Toomsuba  and  Meridian.  The  conductor  declined  to  receive  it,  and 
demanded  fifty  cents,  explaining  to  Forsee  that  his  instructions  were 
positive  to  collect  fift}'  cents  from  passengers  going  from  one  to  the 
otlier  point  mentioned  who  failed  to  purchase  tickets.  Forsee  still 
refused  to  pay  more,  when  the  conductor  stopped  the  train,  seized 
Forsee,  and  with  the  assistance  of  two  train  men  was  about  to  put  hin 
oflP.  Forsee,  rather  than  be  put  off,  paid  fifty  cents  under  protest,  ano. 
afterward  brouglit  this  action  to  recover  damages  for  the  alleged  injury 
that  resulted  to  him  from  the  neglect  and  wrongful  conduct  of  the  rail- 
road comi)an3's  agents. 

Plaintiff  introduced  evidence  tending  to  show  that  the  conductor 
acted  in  a  rough,  insulting,  and  insolent  manner,  while  the  defence 
introduced  evidence  tending  to  show  the  opposite,  and  that  the  con- 
ductor used  no  more  force  than  was  necessar}*. 

Plaintiff  offered  to  prove  by  witnesses  and  by  the  deposition  of  one 
C.  P.  Blanks  that  the  acting  ticket  agent  was  a  boy  of  sixteen  years, 


FORSEE   V.    ALABAMA   GREAT   SOUTHERN   RAILROAD.  367 

that  he  was  careless  and  indifferent,  and  that  he  had  been  previously 
reported  to  defendant  for  neglecting  his  duties.  This  evidence  the 
court  below  refused  to  admit. 

Plaintiff  further  offered  to  prove  by  two  witnesses  that  he  was  at  the 
time  in  a  delicate  state  of  health,  and  that  he  would  have  probably 
received  serious  and  permanent  injuries  had  he  been  put  off  the  train, 
and  that  owing  to  the  delicate  state  of  his  health,  an}-  undue  excite- 
ment of  mind  was  injurious,  but  the  court  below  refused  to  admit  such 
testimony'. 

Plaintiff  also  offered  to  prove  that  on  the  day  following  his  attempt 
to  purchase  the  ticket,  the  ticket  agent  had  admitted  to  some  third 
person  that  he  was  asleep  before  and  on  the  arrival  of  the  train  on  the 
da}'  in  question,  and  that  the  depot  was  not  lighted ;  and  this  evidence 
the  court  below  refused  to  admit.  The  jury  rendered  a  verdict  for 
plaintiff,  and  fixed  his  damages  at  fifty  dollars,  and  thereupon  the  court 
adjudged  that  each  party  pa^'  his  own  costs.     The  plaintiff  appealed. 

Arnold,  J.  There  was  no  error  in  sustaining  the  objection  to  the 
proposed  testimony  in  regard  to  appellant's  health.  It  is  not  claimed 
that  his  health  was  affected  b}*  the  occurrence  of  which  he  complains, 
and  evidence  on  that  subject  was  irrelevant. 

The  testimony  offered,  including  the  deposition  of  C.  P.  Blanks  in 
regard  to  the  character  of  the  ticket  agent,  was  properly  excluded.  It 
was  shown  that  the  agent  was  not  at  his  post,  and  that  the  ticket  office 
was  not  open  in  time  for  appellant  to  obtain  a  ticket,  and  the  character 
of  the  agent  under  these  circumstances  was  immaterial. 

The  alleged  admissions  or  declarations  of  the  ticket  agent,  made  a 
day  or  more  after  the  occurrence  to  which  they  related,  were  incom- 
petent, and  the  objection  to  the  testimony  introduced  to  prove  such 
admissions  or  declarations  was  well  taken.  Moore  v.  Chicago,  dec. 
Railroad  Co.,  59  Miss.  243. 

It  is  competent  for  a  i^ailroad  corporation  to  adopt  reasonable  rules 
for  the  conduct  of  its  business,  and  to  determine  and  fix,  within  the 
limits  specified  in  its  charter  and  existing  laws,  the  fare  to  be  paid  by 
passengers  transported  on  its  trains.  It  may,  in  the  exercise  of  this 
right,  make  discrimination  as  to  the  amount  of  fare  to  be  charged  for 
the  same  distance,  b}^  charging  a  higher  rate  when  the  fare  is  paid  on 
the  train  than  when  a  ticket  is  purchased  at  its  oflSce.  Such  a  regula- 
tion has  been  ver}'  generally'  considered  reasonable  and  beneficial  both 
to  the  public  and  the  corporation,  if  carried  out  in  good  faith.  It 
imposes  no  hardship  or  injustice  upon  passengers,  who  may,  if  they 
desire  to  do  so,  pay  their  fare  and  procure  tickets  at  the  lower  rate 
before  entering  the  cars,  and  it  tends  to  protect  the  corporation  from 
the  frauds,  mistakes,  and  inconyenience  incident  to  collecting  fare  and 
making  change  on  trains  while  in  motion,  and  from  imposition  by  those 
who  ma}'  attempt  to  ride  from  one  station  to  another  without  payment, 
and  to  enable  conductors  to  attend  to  the  various  details  of  their  duties 
on  the  train  and  at  stations.     State  v.  Goold,  53  Maine,  279  ;  The 


368  FORSEE  v.   ALABAMA   GREAT   SOUTHERN   RAILROAD. 

Jeffersonville  Railroad  Co.  v.  Rogers,  28  Ind.  1 ;  Swan  v.  Manchester, 
&c.  Railroad  Co.,  132  Mass.  116. 

But  such  a  regulation  is  invalid,  and  cannot  be  sustained,  unless  the 
corporation  affords  reasonable  opportunity'  and  facilities  to  passengers 
to  procure  tickets  at  the  lower  rate,  and  therebj-  avoid  the  disadvantage 
of  such  discrimination.  When  this  is  done,  and  a  passenger  fails  to 
obtain  a  ticket,  it  is  his  own  fault,  and  he  may  be  ejected  from  the 
train  if  he  refuses  to  pa}'  the  higher  rate  charged  on  the  train. 

When  such  a  regulation  is  established,  and  a  passenger  endeavors  to 
bu}'  a  ticket  before  he  enters  the  cars,  and  is  unable  to  do  so  on  account 
of  the  fault  of  the  corporation  or  its  agents  or  servants,  and  ho  offers 
to  pa}-  the  ticket  rate  on  the  train,  and  refuses  to  pay  the  car  rate,  it  is 
unlawful  for  the  corporation  or  its  agents  or  servants  to  eject  him  from 
the  train.  He  is  entitled  to  travel  at  the  lower  rate,  and  the  corpora- 
tion is  a  trespasser  and  liable  for  the  consequences  if  he  is  ejected  from 
the  train  b}'  its  agents  or  servants.  The  passenger  may,  under  such 
circumstances,  either  pay  the  excess  demanded  under  protest,  and 
afterwards  recover  it  by  suit,  or  refuse  to  pay  it,  and  hold  the  corpora- 
tion responsible  in  damages  if  he  is  ejected  from  the  train.  1  Redfleld 
on  Railways,  104;  Evans  v.  M.  &  C.  Railroad  Co.,  56  Ala.  246;  St. 
Louis,  &c.  Railroad  Co.  v.  Dalb}-,  19  111.  353  ;  St.  Louis,  &c.  Railroad 
Co.  V.  South,  43  111.  176  ;  Smith  v.  Pittsburg,  &c.  Railroad  Co.,  23  Ohio 
St.  10 ;  Porter  v.  N.  Y.  Central  Railroad  Co.,  34  Barb.  353  ;  The  Jef- 
fersonville Railroad  Co.  v.  Rogers,  28  Ind.  1 ;  The  Jefferson  Railroad 
Co.  V.  Rogers,  38  Ind.  116;  State  v.  Goold,  53  Maine,  279  ;  Swan  v. 
Manchester,  &c.  Railroad  Co.,  132  Mass.  116  ;  Du  Laurans  v.  St.  Paul, 
&c.  Railroad  Co.,  19  Minn.  49. 

In  such  case  exemplary  damages  would  not  be  recoverable,  unless 
the  expulsion  or  attempted  expulsion  was  characterized  by  malice, 
recklessness,  rudeness,  or  wilful  wrong  on  the  part  of  the  agents  or 
servants  of  the  corporation.  Chicago,  &c.  Railroad  Co.  v.  Scurr,  59 
Miss.  456;  Du  Laurans  v.  St.  Paul,  «fec.  Railroad  Co.,  19  Minn.  49; 
Pullman,  &c.  v.  Reed,  75  111.  125;  Hamilton  v.  Third  Avenue  Railroad 
Co.,  53  N.  Y.  25  ;  Townsend  v.  N.  Y.  Central  Railroad  Co.,  56  N.  Y. 
295 ;  Paine  v.  C.  R.  I.  &  P.  Railroad  Co.,  45  Iowa,  569  ;  McKinley  v. 
The  C.  &  N.  W.  Railroad  Co.,  44  Iowa,  314. 

The  cause  was  tried  in  the  court  below  on  theories  and  principles  of 
law  different  from  those  here  expressed,  and  the  judgment  is  reversed 
and  a  new  trial  awarded. 

Reversed. 


PHILADELPHIA,  WILMINGTON  &   BALTIMORE  R.R.  V.   RICE.   369 

PHILADELPHIA,   WILMINGTON  AND   BALTIMORE 
RAILROAD    COMPANY   v.   RICE. 

Court  of  Appeals  of  Maryland,  1885. 

[64  Md.  63.] 

Robinson,  J.,  delivered  the  opinion  of  the  Court. 

The  appellee,  plaintiff  below,  bought  a  round  trip  ticket  from  Wil- 
mington to  Philadelphia.  The  ticket  was  in  two  coupons  attached  to 
each  other,  —  one  being  for  the  trip  to  Philadelphia,  and  the  other  for 
the  return  trip.  Shortly  after  leaving  Wilmington,  the  conductor  came 
through  for  tickets,  took  the  plaintiflTs  ticket,  tore  off  the  coupon  for 
the  trip  to  Philadelphia,  and  by  mistake  punched  the  return  coupon. 
A  few  minutes  after,  he  came  back  and  said  to  plaintiff,  "  let  me  see 
that  ticket,  I  think  I  have  made  a  mistake."  He  then  took  the  ticket 
which  was  the  return  coupon  punched  by  him,  and  wrote  on  the  back 
of  it  with  a  pencil  the  words  "  cancelled  by  mistake,"  and  returned  it 
to  the  plaintiff,  saying,  "  I  have  fixed  it  all  right,  now  30U  can  ride  on 
it."  The  next  da}-,  the  plaintiff  on  the  return  trip  to  Wilmington 
handed  to  the  conductor  of  that  train  the  punched  coupon,  which,  how- 
ever, he  declined  to  accept,  because  it  had  been  cancelled.  The  plain- 
tiff then  called  his  attention  to  the  writing  on  the  back  of  the  ticket, 
and  explained  how  it  had  been  punched,  and  the  mistake  corrected  by 
the  conductor  on  the  trip  to  Philadelphia.  But  the  conductor  declined 
to  accept  the  explanation,  saj'ing  to  the  plaintiff,  "anybod}'  could  have 
written  that,  you  could  have  done  it  30urself."  The  mistake,  it  seems, 
had  not  been  corrected  according  to  the  rules  ot  the  compan}-,  which 
required  the  conductor  making  the  mistake  to  draw  a  ring  around  the 
cancellation  mark,  and  write  on  the  back  of  the  ticket  the  word  "  error," 
and  sign  his  name  or  initials.  The  conductor  accordingly  demanded  of 
the  plaintiff  the  fare  from  Philadelphia  to  Wilmington,  and  upon  his 
refusal  to  pay  it,  he  was  put  off  the  train. 

Upon  these  facts  it  is  admitted  an  action  will  lie  against  the  compan}' 
for  a  breach  of  contract  as  a  carrier,  or  for  the  negligence  of  the  con- 
ductor in  cancelling  the  plaintiff's  ticket,  and  thereby  destroying  the 
only  evidence  of  his  right  to  the  return  trip  ;  but  inasmuch  as  the  can- 
cellation had  not  been  corrected  according  to  the  rules  of  the  company, 
the  ejection  of  the  plaintiff  under  such  circumstances,  it  is  argued,  does 
not  in  itself  furnish  a  substantive  ground  of  action.  We  shall  not  stop 
to  examine  the  several  cases  relied  on  in  support  of  this  contention. 
Hufford  V.  Grand  Rapids  and  I.  R.  R.  Co.,  The  Reporter,  18  Vol., 
147;  Frederick  v.  The  Marquette,  Houghton  and  Ontonagon  R.  R.  Co., 
37  Michigan,  342  ;  Yorton  v.  The  Milwaukee,  Lake  Shore,  and  West- 
ern Railway  Co.,  54  Wisconsin,  234 ;  Bradshaw  v.  South  Boston  R.  R. 
Co.,  135  Mass.  407. 

It  is  sufficient  to  say  the  facts  in  this  case  differ  materially  from  the 
facts  in  those  cases.     Here  the  plaintiff  was  tvholly  without  fattlt.     He 

24 


370       PHILADELPHIA,   WILMINGTON   A   BALTIMORE   R.R.  V.   RICE. 

!iiad  purchased  a  ticket  which  entitled  him  to  a  round  trip  from  "Wil- 
mington to  Philadelphia.  The  return  coupon  was  cancelled  through 
the  mistake  of  the  conductor ;  this  error  he  attempted  to  correct,  and 
informed  the  plaintiff  that  it  was  all  right.  The  latter  had  a  right  to 
rel}'  on  this  assurance,  and  that  the  ticket  for  which  he  had  paid  his 
mone}'  entitled  him  to  return  to  AVilmington. 

If  the  servants  of  the  appellant  under  such  circumstances  laid  their 
hands  forcibly  on  the  person  of  the  plaintiff,  and  compelled  him  to 
leave  the  car,  there  was  not  merely  a  breach  of  contract  on  the  part  of 
the  company,  but  an  unlawful  interference  with  the  person  of  the  plain- 
tiff, and  an  indignit}'  to  his  feelings  for  which  an  action  will  lie,  and  for 
which  he  is  entitled  to  be  compensated  in  damages.  Such  is  the  well 
settled  law  of  this  State  and  of  this  country.  The  mistake  by  which 
the  plaintiff's  ticket  was  cancelled  was  the  mistake  of  the  appellant's 
servant,  and  it  must  abide  the  consequences.  There  was  no  error, 
therefore,  in  the  rulings  of  the  Court  in  this  respect. 

But  in  addition  to  damages  for  the  unlawful  interference  with  the 
person  of  the  plaintiff  and  the  indignity'  to  his  character  and  feelings, 
the  Court  also  instructed  the  jur}-  that  if  he  was  maliciously  or  wantonly 
ejected  from  the  train,  he  was  entitled  to  recover  exemplary  damages 
as  a.  piinishment  to  the  appellant.  Now  we  have  not  been  able  to  find 
a  particle  of  evidence  from  which  the  jury  could  find  that  the  plaintiff 
was  wantonh*  or  maliciously'  ejected  from  the  car.  The  ticket  which  he 
handed  to  the  conductor,  Mattison,  was  a  cancelled  ticket,  one  which 
upon  its  face  showed  it  had  been  used.  It  had  been  cancelled,  it  is 
true  b}'  the  mistake  of  another  conductor;  but  this  mistake  had  not 
been  corrected  according  to  the  rules  of  the  compan}'.  Mattison  could 
not  therefore  recognize  it  as  a  ticket  entitling  the  plaintiff  to, the  trip  to 
Wilmington,  and  if  the  latter  refused  to  pay  his  fare  or  to  leave  the 
car,  the  conductor  was  obliged  to  eject  him  forcibl}'.  The  proof  shows 
the  conductor  acted  in  good  faith,  and  in  obedience  to  the  rules  of  the 
compan3-,  and  that  no  greater  force  was  used  than  was  actually  neces- 
sary. No  complaint  is  made  by  the  plaintiff  in  liis  testimony  of  unnec- 
essary force,  or  that  any  abusive  language  was  used.  The  brakeman, 
he  says,  "  put  his  hand  on  his  shoulder,  and  pulled  him  across  the 
person  who  was  sitting  by  him ;  "  at  first  he  made  up  his  mind  to  resist ; 
but  upon  the  advice  of  friends  he  concluded  to  go  out  without  further 
resistance.  The  testimony  of  his  friends  Friedenrich  and  Hobbs  is 
to  the  same  effect.  Hobbs  says,  the  manner  "of  the  conductor  and 
brakeman  was  firm  and  decided  ;  they  looked  angry."  This  is  the 
evidence  on  the  part  of  the  plaintiff  to  support  the  claim  for  punitive 
damages,  damages  as  a  punishment  to  the  appellant  for  having  acted 
in  bad  faith,  or  maliciously,  or  wantonly,  or  in  a  spirit  of  oppression. 
The  case,  it  seems  to  us,  is  wanting  in  every  element  necessary  to  entitle 
the  plaintiff  to  vindictive  damages.  Camp,  a  passenger,  who  saw  and 
heard  all  that  took  place  says,  "  the  conductor  told  the  plaintiff  he  must 
have  all  the  tickets  regular,  and  hoped  he  would  not  think  hard  of  him ; 


BRADSHAW  V.   SOOTH   BOSTON  RAILROAD   COMPANY.  371 

his  orders  were  imperative,  and  he  was  onl}-  doing  his  dutj'.  The 
brakeman  put  his  hand  gently  on  plaintiff's  shoulder  and  he  went 
out  without  resistance;  all  the  parties,"  witness  thought  "acted  like 
gentlemen." 

This  case  comes  before  us  a  second  time,  and  we  naturally  feel  some 
reluctance  in  sending  it  back  for  another  trial.  But  as  there  is  no  evi- 
dence from  which  the  jury  could  reasonably  find  that  the  plaintiff  was 
wantonly  or  maliciously  put  off  the  train,  the  Court  erred  in  granting 
the  plaintiff's  third  prayer,  by  which  the  question  oi  punitive  damages 
was  submitted  to  the  finding  of  the  jury. 

Judgment  reversed,  and  new  trial  awarded. 


BRADSHAW  v.    SOUTH  BOSTON  RAILROAD   COMPANY. 
Supreme  Court  op  Massachusetts,   1883. 

[135  Mass.  407.] 

Tort  for  being  expelled  from  one  of  the  defendant's  cars. 

C.  Allen,  J.  It  may  be  assumed,  as  the  view  most  favorable  to 
the  plaintiff,  that  the  defendant  was  bound  bj'  an  implied  contract  to 
give  him  a  check  showing  that  he  was  entitled  to  travel  in  the  second 
car,  and  that  it  failed  to  do  so ;  in  consequence  of  which  he  was  forced 
to  leave  the  second  car.  It  does  not  appear  that  the  defendant  had 
any  rule  requiring  conductors  to  eject  passengers  under  such  circum- 
stances. We  ma}',  however,  take  notice  of  the  fact  that  it  is  usual  for 
passengers  to  provide  themselves  with  tickets  or  checks,  showing  their 
right  to  transportation,  or  else  to  pay  their  fare  in  money.  It  was  the 
practice  for  passengers  on  the  defendant's  road  to  receive  and  use  such 
checks ;  and  the  plaintiff  intended  to  conform  to  this  practice. 

The  conductor  of  a  street  i-ailwa}'  car  cannot  reasonably  be  required 
to  take  the  mere  word  of  a  passenger  that  he  is  entitled  to  be  carried 
by  reason  of  having  paid  a  fare  to  the  conductor  of  another  car ;  or 
even  to  receive  and  decide  upon  the  verbal  statements  of  others  as  to 
the  fact.  The  conductor  has  other  duties  to  perform,  and  it  would 
often  be  impossible  for  him  to  ascertain  and  decide  upon  the  right  of 
the  passenger,  except  in  the  usual,  simple  and  direct  waj\  The  checks 
used  upon  the  defendant's  road  were  transferable,  and  a  proper  check, 
when  given,  might  be  lost  or  stolen,  or  delivered  to  some  other  person. 
It  is  no  great  hardship  upon  the  passenger  to  put  upon  him  the  duty 
of  seeing  to  it,  in  the  first  instance,  that  he  receives  and  presents  to 
the  conductor  tiie  proper  ticket  or  check  ;  or,  if  he  fails  to  do  this,  to 
leave  him  to  his  remed}'  against  the  compan}'  for  a  breach  of  its  con- 
tract. Otherwise,  the  conductor  must  investigate  and  determine  the 
question,  as  best  he  can,  while  the  car  is  on  its  passage.  The  circum- 
stances would  not  be  favorable  for  a  correct  decision  in  a  doubtful  case. 
A  wrong  decision  in  favor  of  the  passenger  would  usuall}^  leave  the 
company  without  remedy  for  the  fare.     The  passenger  disappears  at 


372  BRADSHAW   V.   SOUTH   BOSTON   RAILROAD   COMPANY. 

the  end  of  the  trip ;  and  even  if  it  should  be  ascertained  by  subsequent 
inquiry  that  he  had  obtained  his  passage  fraudulently,  the  legal  remedy 
against  him  would  be  futile.  A  railroad  company  is  not  expected  to 
give  credit  for  the  payment  of  a  single  fare.  A  wrong  decision  against 
the  passenger,  on  the  other  hand,  would  subject  the  company  to  liabil- 
ity in  an  action  at  law,  and  perhaps  with  substantial  damages.  The 
practical  result  would  be,  either  that  the  railroad  compan}-  would  find 
itself  obliged  in  common  prudence  to  carry  everj-  passenger  who  should 
claim  a  right  to  ride  in  its  cars,  and  thus  to  submit  to  frequent  frauds, 
or  else,  in  order  to  avoid  this  wrong,  to  make  such  stringent  rules  as 
greatly  to  incommode  the  public,  and  deprive  them  of  the  facilities  of 
transfer  from  one  line  to  another,  which  they  now  enjoy. 

It  is  a  reasonable  practice  to  require  a  passenger  to  pay  his  fare,  or  to 
show  a  ticket,  check  or  pass  ;  and,  in  view  of  the  difficulties  above  al- 
luded  to,  it  would  be  unreasonable  to  hold  that  a  passenger,  without  such 
evidence  of  his  right  to  be  carried,  might  forcibly  retain  his  seat  in  a 
car,  upon  his  mere  statement  that  he  is  entitled  to  a  passage.  If  the 
company  has  agreed  to  furnish  him  with  a  proper  ticket,  and  has  failed 
to  do  so,  he  is  not  at  liberty  to  assert  and  maintain  b}'  force  his  rights 
under  that  contract ;  but  he  is  bound  to  yield,  for  the  time  being,  to  the 
reasonable  practice  and  requirements  of  the  company,  and  enforce  his 
rights  in  a  more  appropriate  wa}'.  It  is  easy  to  perceive  that,  in  a 
moment  of  irritation  or  excitement,  it  maj'  be  unpleasant  to  a  passen- 
ger who  has  once  paid  to  submit  to  an  additional  exaction.  But,  un- 
less the  law  holds  him  to  do  this,  there  arises  at  once  a  conflict  of 
rights.  His  right  to  transportation  is  no  greater  than  the  right  and 
dut}'  of  the  conductor  to  enforce  reasonable  rules,  and  to  conform  to 
reasonable  and  settled  customs  and  practices,  in  order  to  prevent  the 
companj-  from  being  defrauded ;  and  a  forcible  collision  might  ensue. 
The  two  supposed  rights  are  in  fact  inconsistent  with  each  other.  If 
the  passenger  has  an  absolute  right  to  be  carried,  the  conductor  can 
have  no  right  to  require  thf  production  of  a  ticket  or  the  payment  of 
fare.  It  is  more  reasonable  to  hold  that,  for  the  time  being,  the  pas- 
senger must  bear  the  burden  which  results  from  his  failure  to  have  a 
proper  ticket.  It  follows  that  the  plaintiff  was  where  he  had  no  right 
to  be,  after  his  refusal  to  pay  a  fare,  and  that  he  might  properly  be 
ejected  from  the  car. 

This  decision  is  in  accordance  with  the  principle  of  the  decisions  in 
several  other  States,  as  shown  b}'  the  cases  cited  for  the  defendant ; 
and  no  case  has  been  brought  to  our  attention  holding  the  contrary. 
Judgment  for  the  defendant. 


PEOPLE    V.    MANHATTAN    GAS   LIGHT   CO.  373 

THE  PEOPLE  V.   MANHATTAN  GAS   LIGHT   CO. 
Supreme  Court  of  New  York,  1865. 

[45  Barb.  136.] 

Appeal  from  an  order  made  at  a  special  term,  denying  an  application 
for  a  mandamus  commanding  the  defendants  to  supplj-  the  plaintiff  with 
gas,  at  his  house,  No.  121  West  Sixteenth  Street,  New  York. 

By  the  courts  Ingraham,  P.  J.  I  think  there  can  be  no  doubt 
about  the  authority  of  this  court  to  direct  the  respondents  to  furnish 
gas  to  persons  who,  under  the  provisions  of  their  charter,  have  a  right 
to  receive  it  and  who  offer  to  comply  with  the  general  conditions  on 
which  the  company  supply  others. 

They  possess,  by  virtue  of  their  charter,  powers  and  privileges  which 
others  cannot  exercise,  and  the  statutor}-  duty  is  imposed  upon  them 
to  furnish  gas  on  payment  of  all  moneys  due  bj'  such  applicants. 

We  are  left  then  to  inquire  whether  the  relator  was  in  a  condition  to 
demand  from  the  company  this  supply.  It  appears  by  the  papers  used 
on  the  motion  that  the  relator  commenced  taking  gas  in  1858,  at  No.  61 
in  Seventh  Avenue,  and  was  supplied  with  gas  by  the  company,  until 
28th  of  December,  1861.  That  he  paid  for  the  gas  so  received  up  to 
19th  of  August,  1861,  and  that  for  gas  furnished  after  that  date  he  has 
not  paid.  It  also  appears  that  in  January,  1865,  the  respondent  sued 
the  relator  and  obtained  a  judgment  against  him  for  the  amount  due 
therefor,  which  still  remains  unpaid.  In  May,  1864,  the  relator  applied 
to  the  company  for  gas  at  121  West  Sixteenth  Street,  which  was  fur- 
nished to  him  by  the  company,  without  objection  on  account  of  the 
former  indebtedness,  until  9th  of  Februar}-,  1865,  when  the  company 
shut  off  the  supply  of  gas  and  refused  to  furnish  any  more.  It  also  ap- 
pears that  the  relator  in  answer  to  a  claim  for  pa3-ment  of  this  indebted- 
ness, represents  himself  as  insolvent  and  unable  to  pa}'  the  judgment. 

There  is  nothing  in  the  charter  of  the  company  which  requires  them 
to  make  the  objection  that  the  applicant  was  indebted  to  them  at  the 
time  of  the  first  application.  It  would  be  unreasonable  to  suppose  that 
in  ever}^  instance  they  could  ascertain  such  indebtedness.  If  at  any- 
time the  party  is  so  indebted,  the  company  may  refuse  to  furnish,  and 
more  especially  should  this  be  so  when  the  relator  avows  his  insolvency 
and  his  inability  to  pay  for  gas  furnished  previousl}'. 

The  attempted  denial  of  liability  for  this  bill,  by  the  relator,  will  not 
aid  him.  The  company  have  obtained  a  judgment  against  him.  This 
is  not  disputed,  and  no  attempt  is  made  b}'  him  to  set  it  aside.  So  long 
as  that  remains  in  force  it  is  conclusive  against  him. 

The  order  appealed  from  should  be  affirmed,  with  $10  costs.^ 

1  Accord:  Montreal  Gas  Co.  v.  Cadieux,  1899,  A.  C.  589;  Shiras  v.  Ewing,  48 
Kans.  170;  Gas  Co.  v.  Storage  Co.,  Ill  Mich.  401  ;  McDaniel  v.  Waterworks,  48  Mo. 
273;  Turner  v.  Water  Co.,  171  Mass.  330;  Ins.  Co.  v.  Philadelphia,  88  Pa.  St.  393; 
Hotel  Co.  V.  Light  Co.,  3  Wash  316.  — Ed. 


374  STATE   V.   NEBRASKA.  TELEPHONE   CO. 


STATE   V.   NEBRASKA  TELEPHONE   CO. 

Supreme  Coukt  of  Nebraska,  1885. 

[17  Neb.  126.1] 

Reese,  J.  This  is  an  original  application  for  a  mandamus  to  compel 
the  respondent  to  place  and  maintain  in  the  office  of  the  relator  a  tele- 
phone and  transmitter,  such  as  are  usually  furnished  to  the  subscribers 
of  the  respondent.  The  respondent  has  refused  to  furnish  the  instru- 
ments, and  presents  several  excuses  and  reasons  for  its  refusal,  some 
of  whicli  we  will  briefl}'  notice. 

It  appears  that  during  the  year  1883  the  respondent  placed  an  instru- 
ment in  the  office  of  the  relator,  but  for  some  reason  failed  to  furnish 
the  relator  with  a  directory  or  list  of  its  subscribers  in  Lincoln  and 
various  other  cities  and  villages  within  its  circuit,  and  which  directory 
the  relator  claimed  was  essential  to  the  profitable  use  of  the  telephone, 
and  which  it  wad  the  custom  of  respondent  to  furnish  to  its  subscribers. 
Finally-,  the  directory  was  furnished,  but  upon  pa^-day  the  relator  re- 
fused to  pa}'  for  the  use  of  the  telephone  during  the  time  the  respondent 
was  in  default  with  the  directory.  Neither  party  being  willing  to  yield, 
the  instruments  were  removed.  Soon  afterwards  the  relator  applied 
to  the  agent  of  the  respondent  and  requested  to  become  a  subscriber 
and  to  have  an  instrument  placed  in  his  place  of  business,  which  the 
respondent  refused  to  do.  It  is  insisted  that  the  conduct  of  the  relator 
now  relieves  respondent  from  an}'  obligation  to  furnish  the  telephone 
even  if  such  obligation  would  otherwise  exist. 

We  cannot  see  that  the  relations  of  the  parties  to  each  other  can 
have  any  influence  upon  their  rights  and  obligations  in  this  action.  If 
relator  is  indebted  to  respondent  for  the  use  of  its  telephone  the  law 
gives  it  an  adequate  remedy  by  an  action  for  the  amount  due.  If  the 
telephone  has  become  such  a  public  servant  as  to  be  subject  to  the  proc- 
ess of  the  courts  in  compelling  it  to  discharge  public  duties,  the  mere 
fact  of  a  misunderstanding  with  those  who  desire  to  receive  its  public 
benefits,  will  not  alone  relieve  it  from  the  discharge  of  those  duties. 
While  either,  or  perhaps  both,  of  the  parties  may  have  been  in  the 
wrong  so  far  as  the  past  is  concerned,  we  fail  to  perceive  how  it  can 
affect  the  rights  of  the  parties  to  this  action. 

The  pleadings  and  proofs  show  that  the  relator  is  an  attorney-at-law 
in  Lincoln,  Nebraska.  That  he  is  somewhat  extensively  engaged  in 
the  business  of  his  profession,  which  extends  to  Lincoln  and  Omaha, 
and  surrounding  cities  and  county  seats,  including  quite  a  number  of 
the  principal  towns  in  southeastern  Nebraska.  That  this  territory  is 
occupied  by  respondent  exclusively,  together  with  a  large  portion  of 

*  This  opiuiun  is  abridged.  —  Ed. 


STATE   V.    NEBRASKA   TELEPHONE   CO.  375 

southwestern  Iowa,  including  in  all  about  fifteen    hundred  different 
instruments. 

B}-  the  testimon}'  of  one  of  the  principal  witnesses  for  respondent  we 
learn  that  the  company  is  incorporated  for  the  purpose  of  furnishing 
individual  subscribers  telephone  connection  with  each  other  under  the 
patents  owned  bj'  the  American  Telephone  Compau}' ;  instruments  to 
be  furnished  by  said  company  and  sublet  by  the  Nebraska  Telephone 
Company-  to  the  subscribers  to  it.  This  is  clearly  the  purpose  of  the 
organization.  While  it  is  true,  as  claimed  by  respondent,  that  it  lias 
been  organized  under  the  general  corporation  laws  of  the  State,  and  in 
some  matters  has  no  higher  or  greater  right  than  an  ordinar}'  corpora- 
tion, 3-et  it  is  also  true  that  it  has  assumed  to  act  in  a  capacity  wliich  is 
to  a  great  extent  public,  and  has,  in  the  large  territor}'  covered  by  it, 
undertaken  to  satisfy  a  public  want  or  necessity.  This  public  demand 
can  only  be  supplied  by  complying  with  the  necessity  which  has  sprung 
into  existence  by  the  introduction  of  the  instrument  known  as  the  tele- 
phone, and  which  new  demand  or  necessity  in  commerce  the  respondent 
proposes  satisfying.  It  is  also  true  that  the  respondent  is  not  possessed 
of  any  special  privileges  under  the  statutes  of  the  State,  and  that  it  is 
not  under  quite  so  heav}'  obligations,  legally,  to  the  public  as  it  would 
be,  had  it  been  favored  in  that  wa}-,  but  we  fail  to  see  just  how  that  fact 
relieves  it.  While  there  is  no  law  giving  it  a  monopoly  of  the  business 
in  the  territory  covered  by  its  wires,  yet  it  must  be  apparent  to  all  that 
the  mere  fact  of  this  territorj-  being  covered  by  the  "plant"  of  re- 
spondent, from  the  ver^'  nature  and  character  of  its  business  gives  it  a 
monopoly  of  the  business  which  it  transacts.  No  two  companies  will 
tr}'  to  cover  this  same  territory.  The  demands  of  the  commerce  of  the 
present  day  makes  the  telephone  a  necessity.  All  the  people  upon 
complying  with  the  reasonable  rules  and  demands  of  the  owners  of  the 
commodity  —  patented  as  it  is  —  should  have  the  benefits  of  this  new 
commerce.  The  wires  of  respondent  pass  the  office  of  the  relator.  Its 
posts  are  planted  in  the  street  in  front  of  his  door.  In  the  very  nature 
of  things  no  other  wires  or  posts  will  be  placed  there  while  those  of 
respondent  remain.  The  relator  never  can  be  supplied  with  this  new 
element  of  commerce  so  necessary  in  the  prosecution  of  all  kinds  of 
business,  unless  supplied  by  the  respondent.  He  has  tendered  to  it  all 
the  mone}'  required  by  it  from  its  other  subscribers  in  Lincoln  for  put- 
ting in  an  instrument.  He  has  proven,  and  it  is  conceded  b}'  respond- 
ent, that  he  is  able,  financially,  to  meet  all  the  payments  which  may 
become  due  in  the  future.  It  is  shown  that  his  office  can  be  supplied 
with  less  expense  and  trouble  to  respondent  than  many  others  which 
are  furnished  by  it.  No  reason  can  be  assigned  why  respondent  should 
not  furnish  the  required  instruments,  except  that  it  does  not  want  to. 
There  could,  and  doubtless  does,  exist  in  many  cases  suflScient  reason 
for  failing  to  comply  with  such  a  demand,  but  they  are  not  shown  to 
exist  in  this  case.  It  is  shown  to  be  essential  to  the  business  interests 
of  relator  that  his  oflSce  be  furnished  with  a  telephone.     The  value  of 


376  STATE   V.   NEBRASKA   TELEPHONE   CO. 

such  property  is,  of  course,  conceded  by  respondent,  but  by  its  attitude 
it  says  it  will  destroy  those  interests  and  give  to  some  one  in  the  same 
business,  who  may  have  been  more  friendly,  this  advantage  over  him. 

It  is  said  by  respondent  that  it  has  public  telephone  stations  in  Lin- 
coln, some  of  which  are  near  relator's  office,  and  that  he  is  entitled  to 
and  may  use  such  telephone  to  its  full  extent  b}'  coming  there.  That, 
like  the  telegraph,  it  is  bound  to  send  the  messages  of  relator,  but  it 
can  as  well  do  it  from  these  public  stations,  that  it  is  willing  to  do  so, 
and  that  is  all  that  can  be  required  of  it.  Were  it  true  that  respondent 
had  not  undertaken  to  supply  a  public  demand  beyond  that  undertaken 
by  the  telegraph,  then  its  obligations  would  extend  no  further.  But  as 
the  telegraph  has  undertaken  to  the  public  to  send  despatches  from  its 
offices,  so  the  telephone  has  undertaken  with  the  public  to  send  mes- 
sages from  its  instruments,  one  of  which  it  proposes  to  suppl}'  to  each 
person  or  interest  requiring  it,  if  conditions  are  reasonably  favorable. 
This  is  the  basis  upon  which  it  proposes  to  operate  the  demand  which 
it  proposes  to  supply.    It  has  so  assumed  and  undertaken  to  the  public. 

That  the  telephone,  by  the  necessities  of  commerce  and  public  use, 
has  become  a  public  servant,  a  factor  in  the  commerce  of  the  nation 
and  of  a  great  portion  of  the  civilized  world,  cannot  be  questioned.  It 
is  to  all  intents  and  purposes  a  part  of  the  telegraphic  sjstem  of  the 
countrj',  and  in  so  far  as  it  has  been  introduced  for  public  use  and  has 
been  undertaken  by  the  respondent,  so  far  should  the  respondent  be 
held  to  the  same  obligation  as  the  telegraph  and  other  public  servants. 
It  has  assumed  the  responsibilities  of  a  common  carrier  of  news.  Its 
wires  and  poles  line  our  public  streets  and  thoroughfares.  It  has,  and 
must  be  held  to  have  taken  its  place  by  the  side  of  the  telegraph  as 
such  common  carrier. 

The  views  herein  expressed  are  not  new.  Similar  questions  have 
arisen  in,  and  have  been  frequently  discussed  and  decided  bj-,  the  courts, 
and  no  statute  has  been  deemed  necessary  to  aid  the  courts  in  holding 
that  when  a  person  or  company  undertakes  to  supply  a  demand  which 
is  "affected  with  a  public  interest,"  it  must  supply  all  alike  who  are 
like  situated,  and  not  discriminate  in  favor  of,  nor  against  any.  This 
reasoning  is  not  met  b}'  saying  that  the  rules  laid  down  by  the  courts 
as  applicable  to  railroads,  express  companies,  telegraphs,  and  other 
older  servants  of  the  public,  do  not  apply  to  telephones,  for  the  reason 
that  they  are  of  recent  invention  and  were  not  thought  of  at  the  time 
the  decisions  were  made,  and  hence  are  not  affected  by  them,  and  can 
only  be  reached  by  legislation.  The  principles  established  and  declared 
by  the  courts,  and  which  were  and  are  demanded  by  the  highest  mate- 
rial interests  of  the  country,  are  not  confined  to  the  instrumentalities  of 
commerce  nor  to  the  particular  kinds  of  service  known  or  in  use  at  the 
lime  when  those  principles  were  enunciated,  "  but  they  keep  pace  with 
the  progress  of  the  country  and  adapt  themselves  to  the  new  develop- 
ments of  time  and  circumstances.  They  extend  from  the  horse  with  its 
rider  to  the  stage  coach,  from  the  sailing  vessel  to  the  steamboat,  from 


STATE    V.    CAMPBELL.  377 

the  coach  and  the  steamboat  to  the  railroad,  and  from  the  raih'oad  to 
the  telegraph,"  and  from  the  telegraph  to  the  telephone;  "as  these 
new  agencies  are  successivel}'  brought  into  use  to  meet  the  demands  of 
increasing  population  and  wealth.  They  were  intended  for  the  govern- 
ment of  the  business  to  which  they  relate,  at  all  times  and  under  all 
circumstances." 

A  peremptory  writ  of  mandamus  must  be  awarded.^ 


STATE  V.  CAMPBELL. 
Supreme  Court  op  New  Jersey,  1867. 

[32  N.  J.  Law,  309.2] 

The  Chief  Justice.  ...  To  make  intelligible  the  application  of  the 
law  to  the  case,  the  circumstances  must  be  understood.  They  were 
these  :  the  passenger  who  was  expelled  had  purchased,  at  the  depot 
in  New  York,  this  ticket,  which  he  produced  and  showed,  for  the  first 
time,  on  the  platform  at  the  station  at  Newark.  At  the  time  that  he 
provided  himself  with  it,  he  expected  to  have  trouble  with  the  conduc- 
tor, as  it  was  then  his  intention  to  insist  on  his  right  to  use  the  return 
ticket,  which  was  spent.  Being  called  on  by  the  conductor,  on  two 
several  occasions,  to  show  his  ticket,  he  produced  the  spent  one,  keep- 
ing the  other  out  of  view,  so  that  the  conductor  was  not  aware  of  its 
possession  by  him,  while  he  remained  in  the  cars.  Having  arrived 
at  the  Newark  station,  he  was  informed  he  must  pay  his  fare  or  leave 
the  cars.  He  refused  to  do  either  act.  The  conductor  then  declared 
his  intention  to  delay  the  train  until  the  passenger  paid  his  fare  or  left 
the  cars,  and  accordingly  he  sent  back  a  flag,  to  warn  a  train  that  was 
nearly  due  at  Newark.  This  px'oduced  excitement ;  and  when  the 
employees  of  the  company  were  called  in,  the  acquaintances  of  the  rec- 
reant passenger  collected  around  him  and  endeavored  to  prevent  his 
being  put  out.  The  passenger  himself  resisted  by  clinging  to  the 
seats.  After  a  delay  of  twelve  minutes  he  was  ejected.  During  this 
time  the  other  train,  which  had  been  warned  of  the  danger,  arrived. 

It  is  presumed  that  no  person  will  deny  that  here  was  a  transaction 
which,  if  often  repeated,  would  deprive  railroad  travel  of  some  of  its 
security  and  much  of  its  comfort.  Tlie  annoj'ance  and  danger  to  be 
apprehended  from  such  an  affair,  are  too  obvious  to  need  exposition. 
It  is  clear,  therefore,  that  some  person  was  to  blame.  That  person  was 
certainly  not  the  company  or  its  agents.     The  company,  through  its 

1  Accord  :  Smith  v.  Water  "Works,  104  Ala.  315  ;  Crowr.  Irrigation  Co.,  130  CaL 
311 ;  Lloyd  v.  Gas  Co.,  1  Mackey,  131  ;  Gas  Co.  v.  Calliday,  25  Md.  1 ;  Bank  v.  Lowell, 
152  Mass.  556;  Wood  v.  Auburn,  87  Me.  287;  Water  Works  v.  State,  46  Neb.  194; 
Crumley  v.  Water  Co.,  99  Tenn.  420. — Ed. 

'^  This  opinion  is  abridged.  —  Ed. 


3i8  STATE   V.   CAMPBELL. 

agents,  simply  enforced  a  plain  legal  right  in  a  legal  mode.  The  whole 
fault  must  be  laid  to  the  passenger ;  and  the  only  question  which  can 
possiblj'  arise  is,  whether  his  conduct  was  such  as  to  justify  the  con- 
ductor in  refusing  him  re-admission  into  the  cars.  The  proposition  is 
simply  this :  if  a  passenger  refuses  to  show  liis  ticket  on  a  legal  de- 
mand made,  and  refuses  to  leave  the  cars  on  request,  and  is  put  out, 
after  resistance,  has  he,  as  a  matter  of  law,  the  privilege  to  return  to 
the  cars  upon  the  production,  at  this  stage  of  the  occurrence,  of  his 
ticket?  This  proposition  must  be  answered  in  the  affirmative,  in  order, 
in  this  case,  to  hold  that  the  defendant  was  guilty  of  a  wrong.  In  my 
opinion,  such  a  doctrine  is  not  consistent  with  either  law  or  good 
sense.  Its  establishment  would,  practically,  annul  the  power  of  a 
railroad  company  to  require  passengers  to  show  their  tickets  ;  for  it  is 
obvious,  that  if  the  only  penalt}'  on  a  refractor}'  passenger  is  a  momen- 
tary expulsion,  he  will  be  enabled,  at  a  small  sacrifice,  by  repeated 
refusals,  to  compel  an  abandonment  of  the  demand  upon  him.  A 
passenger  takes  his  ticket  subject  to  the  reasonable  regulations  of  the 
company ;  it  is  an  implied  condition  in  his  contract,  that  he  will  sub- 
mit to  such  regulations ;  and  if  he  wilfuU}'  refuses  to  be  bound  b}- 
them,  by  so  doing  he  repudiates  his  contract,  and  after  such  repudia- 
tion cannot  claim  any  right  under  it.  In  this  case,  the  passenger, 
with  full  knowledge  of  the  regulation  in  question,  refused  to  sliow  his 
ticket,  which  alone  gave  him  the  right  to  a  seat  in  the  cars.  The  ex- 
hibition of  the  spent  ticket  did  not  help  the  matter ;  he  stands,  there- 
fore, on  the  same  footing  as  an}'  other  passenger  who,  when  properly 
applied  to,  will  not  exhibit  the  evidence  of  his  rightful  presence  in  the 
car.  If  this  particular  passenger  had  the  legal  right  to  re-enter  the 
cars  after  his  tortious  refusal,  so,  on  all  similar  occasions,  will  all  other 
passengers  be  entitled  to  the  same  right.  We  come  thus  to  the  result, 
that  railroad  passengers  may  violate,  with  full  knowledge,  a  leg.nl  reg- 
ulation of  a  company  in  whose  cars  they  are  carried ;  the}'  may  resist, 
short  of  a  breach  of  the  peace,  all  attempts  to  expel  them ;  they  may, 
by  this  means,  at  a  loss  to  the  company  and  to  the  peril  of  the  public, 
disarrange  the  order  of  successive  trains  upon  the  road,  with  regard  to 
each  other ;  they  may  occasion  a  tumult  and  disorder  in  the  car  in 
which  they  may  happen  to  be  ;  and,  after  being  expelled,  they  may 
immediately  return  to  repeat,  if  so  inclined,  the  same  misconduct.  I 
must  think  it  requires  no  argument  to  show  that  such  a  license  to  do  evil 
as  this  does  not  exist.  The  defendant  was  entirely  justified  in  forming 
the  rational  conclusion,  that  the  passenger  in  question,  if  re-admitted 
into  the  cars,  would  again  misconduct  himself;  and,  under  such  circum- 
stances, it  was  his  duty  to  exclude  him. 

The  Court  of  Oyer  and  Terminer  should  be  advised  to  set  aside  the 
verdict. 


PENNINGTON    V.    PHILADELPHIA,   ETC.    RAILROAD.  379 


PENNINGTON  v.   PHILADELPHIA,    WILMINGTON  AND 
BALTIMORE  RAILROAD   CO. 

Supreme  Court  op  Maryland,  1883. 

[62  Md.  95.1] 

Bryan,  J.,  delivered  the  opinion  of  the  court. 

The  appellant  purchased  from  a  ticket  agent  of  the  appellee  a  ticket 
of  which  the  following  is  a  copy. 


.SJ5 

go 


Phila.  Wilm.  and  Balto.  R.  R. 

(One  Continuous  Passage.) 

Perrymak's  to   Baltimore. 


Pi 

In  consideration  of  the  reduced  rate  at  which  the  ticket  is  sold,  it  is  agreed 
that  it  shall  be  used  within  three  days,  including  the  day  of  sale,  for  a  continu- 
ous trip  only,  and  by  such  trains  as  stop  regularly  at  the  station,  and  bv  its 
acceptance  the  purchaser  becomes  a  party  to  and  binds  himself  to  a  compliance 
with  these  conditions. 

(1,723)  Geo.  A.  Dadmdn, 

General  Ticket  Agent. 

On  the  back  of  the  above  ticket  is  the  following  stamp,  to  wit : 

Phila.  "Wilm.  and  Balto.  R.  R. 


I  Phila.  Wilm.  and  Balto.  K.  K.  ^ 
I  Dec.  13,  1882.  t 

(  Baltimore.  ) 


7  V.  62. 

He  proceeded  in  appellee's  cars  to  Ferryman's  on  the  thirteenth  day 
of  December,  1881,  and  while  attempting  to  return  on  the  sixteenth 
day  of  December,  the  conductor  refused  to  receive  the  ticket  for  his 
passage  and  required  him  to  leave  the  cars.  The  controvers}-  depends 
upon  the  rights  acquired  by  the  purchase  of  the  ticket.  The  plaintiff, 
at  the  trial  below,  offered  to  prove  that  before  he  purchased  the  ticket, 
he  was  informed  by  the  agent,  upon  inquiry  from  him,  that  it  was 
"good  until  used." 

We  think  that  the  plaintiff's  rights  in  this  regard  are  limited  by  the 
ticket.  There  is  no  evidence  in  the  record  that  the  ticket  agent  was 
authorized  to  make  any  contracts  for  the  railroad  company,  or  that  he 
had  any  duties  beyond  the  sale  and  delivery  of  the  tickets.  The  ticket 
purchased  by  the  appellant  clearly  informed  him  that  he  would  have 
no  right  to  use  it  after  the  fifteenth,  and  the  agent  had  no  authority  to 
vary  its  terms. 

A  passenger  has  a  right  to  be  conveyed  in  the  cars  of  a  railroad 
company  without  making  any  special  contract  for  transportation. 
Upon  payment  of  the  usual  fare,  the  compan}-  is  bound  to  convey  him, 
and  is  under  all  the  obligations  imposed  by  law  on  common  carriers,  so 
far  as  they  relate  to  the  transportation  of  him  as  a  passenger.  It  is 
competent  to  vary  these  obligations  by  a  special  agreement,  on  valu- 
1  Opinion  only  is  printed.  —  Ed. 


380  PENNINGTON   V.   PHILADELPHIA,   ETC.   RAILROAD. 

able  consideration,  between  the  passenger  and  the  company.  But  if 
the  passenger  chooses  to  do  so,  he  may  stand  on  his  legal  rights,  and 
elect  to  be  carried  to  his  destination  without  making  any  special  con- 
tract. The  mere  purchase  of  a  ticket  does  not  constitute  a  contract. 
Before  the  ordinary  liabilit}'  of  the  railroad  company  can  be  varied, 
there  must  be  a  consent  of  the  passenger,  founded  on  valuable  con- 
sideration. The  ticket  ordinarily  is  only  a  token,  showing  that  the 
passenger  has  paid  his  fare.  But  where  the  ticket  is  sold  at  less  than 
the  usual  rates,  on  the  condition  that  it  shall  not  be  used  after  a  limited 
time,  if  the  passenger  accepts  and  uses  the  ticket,  he  makes  a  contract 
with  the  company  according  to  the  terms  stated,  and  the  reduction  in 
the  fare  is  the  consideration  for  his  contract.  It  is  true,  he  pays  his 
fare  before  he  receives  the  ticket,  but  if  he  has  been  misled  or  misin- 
formed bj'  the  seller  of  the  ticket,  as  to  its  terms,  he  has  a  right  to 
return  the  ticket  and  receive  back  his  money.  The  railroad  company 
agrees  to  carry  him  at  the  reduced  rate,  upon  the  conditions  stated  on 
the  face  of  his  ticket ;  if  he  agrees  to  those  terms  the  contract  is  con- 
summated ;  but  he  cannot  take  advantage  of  the  reduction  of  the  rate 
and  reject  the  terms  on  which  alone  the  reduction  was  made. 

In  this  case  the  plaintiff  made  the  journey  to  Perr3man's,  under  the 
terms  mentioned  in  the  ticket.  There  was  evidence  that  he  did  not 
read  the  ticket.  He  used  it  and  thereby  availed  himself  of  the  advan- 
tage conferred  by  the  diminished  rates.  He  had  an  ample  opportunity 
to  read  it  if  he  had  chosen  to  do  so.  He  could  not,  on  any  principle, 
hold  the  railroad  company  to  any  terms  except  those  stated.  If  there 
was  a  contract,  these  terms  were  embraced  in  it,  if  there  was  no  con- 
tract, he  had  no  right  to  the  reduction  in  the  fare.  After  availing 
himself  of  this  reduction,  it  was  too  late  for  him  to  allege  that  he  did 
not  know  on  what  terms  the  reduction  was  made ;  when  he  had  an 
ample  opportunity  of  learning  them  from  the  ticket  in  his  possession. 

The  plaintiff  was  required  to  leave  the  cars  at  Back  River  Station, 
on  his  journey  back  to  Baltimore  from  Perrjman's.  After  he  had  left 
the  cars  and  while  on  the  platform  he  offered  to  pa}'  the  conductor  his 
fare  from  that  station  to  Baltimore,  but  the  conductor  refused  to  give 
him  admission  to  the  cars.  The  plaintiff  had  already'  accomplished  a 
portion  of  the  return  journey  to  Baltimore  without  paying  bis  fare. 
He  clearly  was  not  entitled  to  be  conveyed  from  Ferryman's  to  Balti- 
more without  paying  fare  for  the  whole  distance.  If  he  had  been  car- 
ried from  Back  River  Station  to  Baltimore,  on  payment  of  the  fare 
only  from  that  place,  he  would  have  escaped  payment  of  a  portion  of 
the  fare :  and  so,  in  fact,  he  would  have  accomplished  the  return  trip 
at  a  reduced  rate.  The  compan}-  was  under  no  obligation  to  carry  him 
for  less  than  the  full  rate  for  the  whole  distance,  and  so  he  was  prop- 
erly excluded  from  the  cars.     The  judgment  must  be  affirmed. 

Judgment  affirmed. 


WESTERN   UNION   TELEGRAPH   CO.   V.   MCGUIRE.  381 


WESTERN  UNION  TELEGRAPH    CO.  v.  McGUIRE. 
Supreme  Court  op  Indiana,  1885. 

[104  Ind.  130.] 

Elliott,  J.  The  complaint  seeks  a  recover}'  of  the  statutory 
penalt}'  for  a  failure  to  transmit  a  telegraphic  message.  The  answer 
of  the  appellant  is  substantially  as  follows  :  "  The  defendant  says  that 
it  did  fail  and  refuse  to  transmit  the  message  set  forth  in  the  complaint, 
but  defendant  says  that  the  plaintiff  was  a  stranger  in  Frankfort  and  a 
transient  person  therein;  that  the  said  message  was  one  that  required 
an  answer ;  that  the  defendant  has,  and  had  at  the  time,  as  one  of  its 
general  rules  and  regulations  of  business,  regularly  adopted  for  the 
government  of  the  operators  and  agents  of  said  company,  the  follow- 
ing rule  :  '  Transient  persons  sending  messages  which  require  answers 
must  deposit  an  amount  sufficient  to  pa}'  for  ten  words.  In  such  case 
the  signal,  "33"  will  be  sent  with  the  message,  signifying  that  the 
answer  is  prepaid  ; '  that  the  defendant's  agent  to  whom  said  message 
was  offered,  informed  the  plaintiff  of  the  existence  of  said  rule  and 
what  said  rule  was,  and  that  the  amount  required  to  be  deposited  was 
twent^'-five  cents  ;  that  thereupon  the  plaintiff  refused  to  comply  with 
said  rule  and  make  said  deposit." 

To  this  answer  a  demurrer  was  sustained,  and  on  this  ruling  arises 
the  controlling  question  in  the  case. 

One  of  the  incidental  and  inherent  powers  of  all  corporations  is  the 
right  to  make  bj'-laws  for  the  regulation  of  their  business.  There  is 
no  conceivable  reason  why  telegraph  corporations  should  not  possess 
this  general  power ;  nor  is  there  any  doubt  under  the  authorities  that 
this  power  resides  in  them.  Western  Union  Tel.  Co.  v.  Jones,  95  Ind. 
228  (48  Am.  R.  713),  vide  opinion,  p.  231,  and  authorities  cited  ; 
Western  Union  Tel.  Co.  v.  Buchanan,  35  Ind.  429  (9  Am.  R.  744) ; 
True  V.  International  Tel.  Co.,  60  Maine,  9  (11  Am.  R.  156)  ;  Scott 
&  J.  Law  of  Telegraphs,  section  104. 

Affirming,  as  principle  and  authority  require  us  to  do,  that  the  tele- 
graph company  had  power  to  make  by-laws,  the  remaining  question  is 
whether  tiie  one  under  immediate  mention  is  a  reasonable  one.  It  is 
established  by  the  authorities  that  an  unreasonable  by-law  is  void. 
Western  Union  Tel.  Co.  v.  Jones,  supra/  Western  Union  Tel.  Co.  v. 
Buchanan,  supra;  Western  Union  Tel.  Co.  v.  Adams,  87  Ind.  598 
(44  Am.  R.  776)  ;  Western  Union  Tel.  Co.  v.  Blanchard,  68  Ga.  299 
(45  Am.  R.  480,  see  authorities  note,  pages  491,  492). 

It  is  for  the  courts  to  determine  whether  a  by-law  is  or  is  not  an  un- 
reasonable one,  and  this  is  the  question  which  now  faces  us.  1  Dillon 
Munic.  Corp.  (3d  ed.),  section  327;  Scott  &  J.  Law  of  Telegraphs, 
section  104. 


382  OWENSBORO   GASLIGHT  CO.   V.    HILDEBRAND. 

We  are  unable  to  perceive  anjthing  unreasonable  in  the  by-law 
under  examination.  A  person  who  sends  another  a  message,  and  asks 
an  answer,  promises  by  fair  and  just  implication  to  pay  for  transmitting 
the  answer.  It  is  fairl}'  inferable  that  the  sender  who  asks  an  answer 
to  his  message  will  not  impose  upon  the  person  from  whom  he  requests 
the  answer  the  burden  of  paying  the  expense  of  its  transmission.  The 
telegraph  company  has  a  right  to  proceed  upon  this  natural  inference 
and  to  take  reasonable  measures  for  securing  legal  compensation  for 
its  services.  It  is  not  unnatural,  unreasonable,  or  oppressive  for  the 
telegraph  companj'  to  take  fair  measures  to  secure  pa3-ment  for  ser- 
vices rendered,  and  in  requiring  a  transient  person  to  deposit  the 
amount  legally  chargeable  for  an  ordinary  message,  it  does  no  more 
than  take  reasonable  measures  for  securing  compensation  for  transmit- 
ting the  asked  and  expected  message. 

We  have  found  no  case  exactly  in  point,  but  we  have  found  many 
analogous  cases  which,  in  principle,  sustain  the  b3'-law  before  us. 
Western  Union  TeA-  Co.  v.  Carew,  15  Mich,  525;  Camp  v.  Western 
Union  Tel.  Co.,  1  Met.  Ky.  164;  Vedder  v.  Fellows,  20  N.  Y.  126; 
Ellis  V.  Am.  Tel.  Co.,  13  Allen,  226 ;  Mc Andrew  v.  Electric  Tel.  Co., 
33  Eng.  L.  &.  Eq.  180;  Western  Union  Tel.  Co.  v.  Blanchard,  supra, 
see  authorities  cited  note,  45  Am.  R.,  page  489  ;  Western  Union  Tel. 
Co.  V.  Jones,  supra. 

Judgment  reversed,  with  instructions  to  overrule  the  demurrer  to  the 
answer  and  to  proceed  in  accordance  with  this  opinion. 


OWENSBORO  GASLIGHT   CO.   v.  HILDEBRAND. 

Court  of  Appeals  of  Kentucky,   1897. 

[42  6\  W.  Rep.  351.] 

Hazelrigg,  J.  The  Owensboro  Gaslight  Company  and  the  Owens- 
boro  Electric  Company  are  not  given,  in  express  terms,  exclusive  right 
to  manufacture  and  furnish  gas  in  the  city  of  Owensboro,  but  the  com- 
panies are  given  the  use  of  the  streets  and  public  ways  of  the  cit}*  for ' 
the  purpose  of  laying  the  mains  and  pipes  and  other  appliances  in  the 
maintenance  of  its  work.  The  companies  ma}'  also  acquire  the  use  of 
lands  for  their  business  b\'  writs  ad  quod  damnum.  Their  business, 
therefore,  is  affected  with  public  interest,  and  they  are  quasi-public 
corporations,  and  practically  they  have  a  monopol}'  of  the  business  of 
manufacturing  and  furnishing  gas  within  the  corporate  limits  of  the 
city.  It  is  therefore  their  duty  to  furnish  the  city's  inhabitants  with 
gas,  and  to  do  so  upon  terms  and  conditions  common  to  all,  and  with- 
out discrimination.  The}-  cannot  fix  a  variety  of  prices,  or  impose  dif- 
ferent terms  and  conditions,  according  to  their  caprice  or  whim.     They 


STATE   EX   REL.   WEISE   V.   THE   SEDALIA   GAS   LIGHT  CO.       383 

may,  however,  fix  reasonable  rules  and  regulations  applicable,  to  all 
the  consumers  alike.  In  these  cases  the  companies  undertook  to  com- 
pel the  appellee  to  deposit  the  sum  of  twenty  dollars  as  security  for  his 
future  consumption  of  gas  and  electricity',  and  upon  his  refusal  to  do 
so,  withdrew  their  pipes  and  wires  from  his  building.  This  suit  by 
appellee  was  to  compel  them  to  furnish  him  light,  and  the  court,  on 
final  hearing,  granted  the  relief  sought.  It  is  conceded  b}'  appellee 
that  appellant  ma}'  prescribe  reasonable  rules  and  regulations,  and  im- 
pose reasonable  conditions  upon  the  consumer,  and  require  proper 
security  for  the  payment  of  their  bills,  and  ma}-  even  require  deposits 
in  advance  ;  but  his  contention  here  is  that  the  companies  have  adopted 
no  such  rule  or  regulations  as  they  have  attempted  to  enforce  against 
him,  and  such  appears  to  ns  to  be  a  fact.  No  rule  or  regulation  of  a 
general  character  is  relied  on  or  exhibited  by  the  companies,  and  to 
allow  them  to  select  this  or  that  consumer  against  whom  to  enforce 
special  rules  would  put  the  consumer  at  the  capricious  humor  of  the 
agents  and  employees  of  the  companies. 

The  judgment  below  is  affirmed. 


STATE  BX  REL.   WEISE  v.  THE  SEDALIA  GAS   LIGHT  CO. 

Court  of  Appeals,  Missouri,  1889. 

[34  Mo.  App.  501.1] 

Statement  of  the  case  b}^  the  court. 

The  petition  avers,  and  the  alternative  writ  recites,  that  the  appellant 
was  organized  under  the  general  laws  of  the  State  of  Missouri  for  the 
purpose  of  supplying  the  citj'  of  Sedalia  and  its  inhabitants  with  illu- 
minating gas ;  that  by  section  14  of  said  article  7  (Wag.  Stat.)  said 
compan}-  might  lay  its  pipes,  &c.,  through  the  streets  of  said  city,  by 
consent  of  the  municipal  authorities  thereof,  under  such  reasonable 
regulations  as  said  authorities  might  prescribe ;  that  on  the  seven- 
teenth day  of  June,  1868,  an  ordinance  was  passed  by  the  municipal 
authorities  of  said  city  granting  to  said  company  the  exclusive  right  to 
lay  its  pipes  through  said  city,  and  to  suppl}'  it  and  its  inhabitants 
with  gas,  for  a  period  of  thirty  years,  upon  the  sole  condition,  how- 
ever, that  said  company  should  furnish  the  city  and  its  inhabitants  "  a 
good  article  of  illuminating  gas,  at  a  price  per  cubic  foot,  not  exceeding 
the  rate  charged  in  similarly  situated  places ;  "  that  said  company 
accepted  the  terms  of  said  ordinance ;  that  the  relator  complied  with 
all  the  reasonable  rules  and  regulations  of  said  gas  company,  which  are 
fully  set  forth  in  the  petition  and  alternative  writ ;  that  notwithstand- 
ing all  this,  and  relator's  offer  and  tender  of  full  pay  for  all  gas  con- 

1  This  case  is  abridged.  —  Ed. 


384       STATE   EX   REL.    WEISE   V.   THE   SEDALIA   GAS   LIGHT   CO. 

sumed,  the  gas  company  removed  the  meter  from  his  place  of  business 
and  refused  to  furnish  him  gas,  &c. 

All  this  is  admitted  in  respondent's  return  to  the  alternative  writ, 
and  the  sole  justification  pleaded,  for  its  refusal  to  furnish  gas  to 
relator,  is  that,  in  addition  to  the  rules  and  regulations  set  out  in  the 
petition  and  alternative  writ,  said  gas  company  had  adopted  another  to 
the  effect  that,  "  all  persons  using  or  desiring  to  use  gas  manufactured 
by  the  defendant  within  said  cit}',  should  pay  a  month!}-  rental  upon, 
and  for  the  use  of,  the  meter  furnished  b}'  the  defendant  of  the  sum  of 
one  dollar  and  twenty-five  cents  per  month,  in  all  cases  where  such 
consumer  consumes  less  than  five  hundred  feet  of  gas,  and  which  rental 
was  to  be  taken  in  full  of  such  gas,  not  exceeding  the  amoimt  of  five 
hundred  feet  in  an}'  one  month."  Thereupon  relator  moved  to  strike 
out  that  part  of  the  return  for  the  following  reasons : 

I.  The  rule,  regulation  or  bjMaw,  in  said  portion  of  said  return  set 
up  and  pleaded  as  a  reason  wh}^  a  peremptory  mandamus  should  not 
issue  against  defendant  herein,  is  not  a  fair,  impartial  nor  reasonable 
rule  or  by-law ;  it  is  oppressive  and  discriminator}-  and  contrary  to 
public  policy ;  it  is  beyond  the  power  of  the  defendant  to  make  and 
seeks  to  enlarge  the  powers  of  defendant,  granted  it  by  the  laws  of  the 
State ;  it  is  in  conflict  with  the  ordinance  of  the  city  of  Sedalia,  as  set 
forth  in  the  alternative  writ,  under  which  it  supplies  the  city  of  Sedalia 
and  its  inhabitants  with  illuminating  gas. 

II.  Said  portion  of  said  return  states  no  facts  which  in  law  constitute 
good  cause  why  the  defendant  should  not  obey  the  mandate  of  the 
alternative  writ  issued  herein. 

This  motion  was  sustained.  The  respondent  refused  to  plead  further, 
and  the  return,  after  this  portion  being  stricken  out,  being  in  etfect  a 
concession  of  the  recitations  of  the  alternative  writ,  a  peremptory  writ 
was  ordered. 

The  sole  ground  of  error  is  the  action  of  the  court  in  striking  out 
said  portion  of  respondent's  return. 

Gill,  J.  I.  It  is  a  well-understood  principle  that  corporations,  so 
engaged  as  the  appellant  gas  company,  ma}',  in  its  dealings  with  the 
people,  adopt  and  enforce  such  reasonable  and  just  rules  and  regula- 
tions as  may  be  necessary  to  protect  its  interests  and  further  the  de- 
signs of  its  incorporation.  They  have  such  power,  too,  without  an 
express  grant  to  that  eflfect.  It  is  an  inherent  power  implied  from  the 
nature  of  the  business  in  which  they  are  engaged,  limited  only  by 
express  statute,  or  ordinance,  or  by  a  sense  of  what  is  right,  reasonable, 
and  just.  Shepard  v.  Gas  C!o.,  6  "Wis.  639  ;  Wendall  v.  State,  62 
Wis.  300. 

The  relator  in  this  action  contends,  however,  that  the  rule,  or  regu- 
lation, of  the  Sedalia  Gas  Company  prescribing  payment  by  the  con- 
sumer of  $1.25  per  month,  where  the  amount  of  gas  used  is  less  per 
month  than  five  hundred  cubic  feet  —  the  designated  $1.25  per  month 
being  denominated  rent  of  meter —  is  "  unjust,  unreasonable,  and  dis- 


STATE   EX  REL.   WEISE   V.   THE  SEDALIA.  GAS   LIGHT  CO.        385 

criminatory."  What  is  just  and  reasonable  is  to  be  determined  by  the 
nature  of  the  employment  pursued  by  the  corporation  and  the  uses  and 
conveniences  of  the  public.  There  must  be  a  reasonable  protection  of 
the  interests  of  the  one,  consistent  with  the  reciprocal  rights  of  the 
other. 

Irrespective,  now,  of  any  ordinance  provision,  can  it  be  said  that  this 
charge  of  $1.25  per  month  on  a  consumer  of  less  than  five  hundred 
cubic  feet  of  gas  is  unreasonable  2  We  think  it  is  not  unjust  or  un- 
reasonable. The  evident  purpose  of  this  rule  was  to  exact  fair  com- 
pensation from  those  requiring  gas  connection,  and  gas  furnished  at 
hand,  though  the  amount  consumed  should  be  very  small,  almost 
nominal. 

It  is  a  matter  of  common  knowledge,  that  to  furnish  the  gas  at  hand 
for  the  very  small  or  nominal  consumer  requires  the  same  out-lay,  in 
the  way  of  a  meter,  periodical  inspection  and  repairs,  with  weekl}-  or 
monthly  visitations,  that  is  required  of  very  large  consumers.  The 
same  investment  and  the  same  care  and  oversight  is  required  where  the 
gas  monthly  consumed  shall  not  exceed  ten  cubic  feet  or  even  one  cubic 
foot,  as  where  the  amount  used  may  be  ten  thousand  cubic  feet.  At  the 
rate  charged  then  in  Sedalia,  as  alleged  in  relator's  complaint,  the  gas 
company  would  be  required  to  invest  and  expend,  for  the  benefit  of 
this  merely  nominal  consumer,  more  dollars  than  cents  received.  The 
rate  there  charged,  as  alleged,  is  $2.50  per  thousand  cubic  feet.  For 
this  ten  cubic  feet  thus  consumed,  and  for  which  the  company  could 
receive  pay  of  only  two  and  a  half  cents,  the  cost  to  the  gas  company 
may  be  many  dollars. 

II.  Relator's  further  contention  is  that  the  gas  company  has  no 
authority,  under  the  ordinance  of  the  city,  under  which  it  operates,  to 
adopt  or  enforce  the  rule  in  question. 

Much  courage  for  this  contention  is  apparenth'  drawn  from  the  terms 
of  the  grant  of  franchise,  b}'  the  cit}',  wherein  it  is  provided  that  the 
grant  should  be  "upon  condition  that  it  (the  gas  company)  should 
furnish  the  public  lamps  of  the  city,  and  to  the  inhabitants  of  the  city 
.  .  .  gas  at  a  price,  per  cubic  foot,  not  exceeding  the  rate  charged  in 
similarly  situated  places ;  that  said  gas  company  should  have  the  right 
to  collect  pay  for  gas  furnished  from  the  consumers  of  the  same,"  &c. 

It  is  insisted  that  this  is  not  collecting  for  "  gas  consumed,"  but  is 
charging  rental  on  the  meter  used  in  measuring  the  gas,  and  that  the 
company'  is  only  allowed  to  charge  for  gas  per  cubic  foot. 

The  construction  insisted  on  is  too  narrow.  While  the  rule  names 
the  charge  for  gas  in  this  instance  as  "rent"  of  meter,  yet  bv  its 
express  terms  the  $1.25  is  pay  for  all  gas  consumed  by  the  customer, 
to  the  extent  of  five  hundred  cubic  feet.  And  again  the  clause  limiting 
the  maximum  price  at  which  the  company  should  sell  its  gas  to  the  city 
for  street  lamps  and  to  its  citizens  was  only  intended  to  require  of  the 
company  to  furnish  gas  to  Sedalia,  and  to  its  inhabitants,  at  prices  not 
exceeding  those  prevailing  in  other  "  places  similarly  situated."     It 

25 


386  WATAUGA   WATER   CO.    V.   WOLFE. 

was  not  meant  to  prohibit  the  gas  company  from  selling  gas  by  any 
other  means  than  per  cubic  foot.  If  the  companj-  shall  furnish  gas  to 
the  cit}-,  and  to  its  inhabitants,  at  prices  not  in  excess  of  those  charged 
in  *'  places  similarl}'  situated,"  than  the  spirit  of  this  ordinance  pro- 
vision is  fully  met ;  and  if  the  gas  company  by  this  rule  is  charging 
more  than  is  imposed  in  "  places  similarly  situated,"  then  the  pro- 
A'isions  of  the  ordinance  in  question  are  being  violated,  and  the  com- 
pany will  not  be  protected  in  so.  doing.  We  think  this  is  a  fair 
construction  to  be  given  the  clause  in  question.  To  hold  otherwise 
would  impose  upon  the  gas  company  the  necessity  to  affix  a  meter  on 
ever}'  lamp  post  in  the  cit}',  and  measure  off  each  cubic  foot  furnished 
the  cit}- ;  for  the  same  stipulation  implies  to  gas  furnished  the  street 
lamps  as  is  furnished  private  consumers. 

We  hold  then  that  the  rule  or  regulation  in  question,  and  as  is  stated 
in  the  return  to  the  writ,  is  not,  as  a  matter  of  law,  unreasonable,  and 
does  not  conflict  with  the  terms  of  the  franchise  ordinance  referred  to, 
and,  admitting  the  truth  of  that  portion  of  the  return  as  pleaded,  the 
trial  court,  in  our  opinion,  committed  error  in  striking  out  the  same,  as 
it  was  proper  matter  of  defence  to  the  action. 

Judgment  reversed  and  cause  remanded. 

The  other  judges  concur. 


WATAUGA   WATER  CO.  v.   WOLFE. 
Supreme  Court  of  Tennessee,  1897. 

[99  Term.  429.] 

Caldwell,  J.  C.  H.  Wolfe  brought  this  suit  against  the  Watauga 
Water  Company  and  obtained  judgment  before  the  circuit  judge,  sitting 
without  a  jury,  for  ten  dollars,  as  damages  for  its  refusal  to  furnish 
him  water  at  his  residence  in  Johnson  City.  The  company  appealed 
in  error. 

The  defendant  is  a  water  company,  chartered  under  the  general  laws 
of  the  State  (Code,  annotated  by  Shannon,  §§  2499-2506),  with  the 
right  of  eminent  domain  and  all  essential  powers,  privileges,  and  fran- 
chises, and  operating  its  waterworks  at  Johnson  Cit}-  under  special 
contract  with  that  city  to  furnish  it  and  its  inhabitants  with  water  at 
designated  rates.  Being  thus  endowed  by  the  State,  and  under  con- 
tract with  one  of  the  State's  municipalities,  the  company  is  essentially 
a  public  corporation,  in  contradistinction  from  a  private  corporation. 
It  is  engaged  in  a  public  business,  under  a  public  grant  and  contract, 
and  is,  therefore,  charged  with  public  duties,  and  cannot,  at  its  election 
and  without  good  reason,  serve  one  member  of  the  community  and  not 
another.  It  is  bound  to  furnish  the  commodity,  which  it  was  created 
to  supply,  to  the  city  and  all  of  its  inhabitants  upon  the  terms  desig- 


WATAUGA   WATER   CO.   V.   WOLFE.  387 

nated  in  its  contract  (the  same  being  fair  and  reasonable),  and  without 
discrimination.  Crumle}-  v.  Watauga  Water  Co.,  98  Tenn.  420 ; 
Hangen  v.  Albina  Light  &  Water  Co.  (Ore.),  14  L.  R.  A.  424; 
American  Waterworks  Co.  v.  State  (Neb.),  30  L.  R.  A.  447;  State 
V.  Butte  City  Water  Co.  (Mont.),  32  L.  R.  A.  697  ;  Union  Tel.  Co.  v. 
State,  118  Ind.  206;  Lombard  v.  Stearns,  4  Cush.  60;  Lowell  v. 
Boston,  111  Mass.  464;  Williams  v.  Mut.  Gas  Co.,  52  Mich.  499  ;  50 
Am.  Rep.  266 ;  Olmsted  v.  Morris  Aqueduct  Proprs.,  47  N.  J.  Law, 
333  ;  Shepard  v.  Milwaukee  Gas  Co.,  6  Wis.  539  ;  70  Am.  Dec.  479; 
Spring  Vallej'  Waterworks  v.  Schottler,  110  U.  S.  347;  New  Orleans 
Gas  Co.  V.  Louisiana  Light  Co.,  115  U.  S.  650;  Louisville  Gas  Co.  v. 
Citizens'  Gas  Co.,  115  U.  S.  683;  2  Mor.  on  Pri.  Corp.,  Sec.  1129; 
2  Cook  on  S.  S.  &  C.  L.,  Sec.  932  ;  1  Dill,  on  Mun.  Corp.  (4th  ed.). 
Sec.  52,  and  note,  citing  Forster  v.  Fowler,  60  Pa.  St.  27  ;  29  Am.  & 
Eng.  Enc.  L.  19,  note ;  15  L.  R.  A.  322. 

Though  impressed  with  a  public  use,  and  under  legal  obligation  to 
furnish  water  to  all  inhabitants  at  the  designated  rates,  and  without 
discrimination,  the  defendant  company  is  allowed  to  adopt  reasonable 
rules  for  the  conduct  of  its  business  and  operation  of  its  plant,  and 
such  rules,  so  far  as  they  affect  its  patrons,  are  binding  upon  them,  and 
may  be  enforced  by  the  compan}',  even  to  the  extent  of  denying  water 
to  those  who  refuse  to  comply  with  them.  American  Waterworks  Co. 
V.  State  (Neb.),  30  L.  R.  A.  447. 

Wolfe  had  been  a  patron  of  the  compan}-,  and  had  been  accustomed 
to  leave  his  hydrant  open,  so  that  large  quantities  of  the  escaping 
water  went  to  waste.  His  claim  was,  that  the  water  so  wasted  was 
stale  and  not  fit  for  his  use,  and  upon  that  ground  he  sought  to  justify 
his  action  ;  but  the  compan}'  thought  the  water  not  stale  and  the  waste 
excessive.  Complaints  were  made  to  the  company  by  persons  upon 
whose  premises  the  escaping  water  flowed. 

Wolfe  ceased  to  take  water  from  the  company  for  awhile,  preferring 
to  use  his  well.  When  he  applied  to  the  company  for  water  again, 
tendering  all  required  charges  in  advance  he  was  requested  to  sign  a 
regular  application,  and  agree,  in  conformity  to  a  rule  of  the  company-, 
that  he  would  keep  his  h3'drant  closed  except  when  using  the  water. 
This  he  declined  to  do,  and  the  company  refused  to  turn  water  into 
his  In-drant.  He  said  he  "  wanted  pure,  good  water,"  and  that  he 
"  would  keep  the  tube  open  so  long  as  it  was  necessary  to  keep  the 
water  fresh."  Three  days  after  the  company's  declination  this  suit  was 
brought  to  recover  damages.  The  rule  in  question  was  reasonable, 
and  Wolfe's  refusal  to  comply  with  it  disentitled  him  to  receive  the 
water,  and  relieved  the  company  of  its  obligation  to  furnish  it.  This 
does  not  imply  that  a  patron  of  a  water  company  is  not  entitled  to 
"  pure,  good  water,"  but  only  means  that  he  maj-  not  set  himself  up 
as  the  sole  judge  of  its  quality,  and  execute  his  own  adverse  judgment 
in  his  own  way,  and  without  restraint,  in  defiance  of  the  company,  and 
to  its  inevitable  detriment.     It  has  been  held,  that  "  a  rule  of  a  water 


388  HARBISON    V.   KNOXVILLE   WATER  CO. 

corapan}',  giving  it  the  right  to  shut  off  water  from  the  premises  of  a 
consumer  who  wastes  it,  is  reasonable  "  (Shiras  v.  Ewing,  48  Kan. 
170)  ;  and  that  holding  was  approved  in  the  case  of  American  Water- 
works Co.  V.  State,  30  L.  R.  A.  449. 

Heversed,  and  enter  judgment  dismissing  suit  with  costs. 


HARBISON  V.  KNOXVILLE  WATER  CO. 
Court  of  Chancery  Appeals  of  Tennessee,  1899. 

[53  S.  W.  Rep.  993.] 

Tfiis  bill  was  filed  February,  1899,  to  enjoin  the  defendant  from 
cutting  off  the  water  supply  for  domestic  purposes  from  the  premises 
occupied  by  complainant,  and  to  secure  a  mandatory  injunction  com- 
manding defendant  to  furnish  complainant  water  for  the  purpose  stated, 
without  requiring  him  to  compl}'  with  certain  of  its  rules  and  regula- 
tions, characterized  in  the  bill  as  oppressive  and  unreasonable.  The 
bill,  after  stating  the  location  of  the  premises  occupied  by  complain- 
ant, and  that  the  defendant  was  a  corporation  organized  under  the 
laws  of  this  State  for  the  purpose  of  supplying  water  to  the  city  of 
Knoxville  and  its  inhabitants,  avers  that,  having  been  given  the  rights 
to  lay  its  pipes,  &c.,  in  the  streets  and  alleys  of  the  city  of  Knoxville, 
it  is  a  public  corporation,  and  engaged  in  a  public  business.  The  bill 
further  avers  that  complainant,  soon  after  he  occupied  the  premises 
described,  commenced  taking  water  from  the  defendant  for  domestic 
purposes,  and  continued  to  get  water  from  it  until  May,  1899,  paying 
in  advance  therefor,  under  the  rules  of  the  company  ;  that  the  hydrant 
or  pipe  from  which  complainant  obtained  his  suppl}'  of  water  was  located 
in  his  3'ard,  adjacent  to  his  house,  and  that  in  Maj',  1898,  he,  at  his 
own  expense,  had  a  faucet  put  upon  his  hj'drant,  and  began  to  use 
water  for  sprinkling  his  yard  and  the  street  adjacent  thereto ;  that  for 
water  thus  used  he  paid  the  additional  charges  exacted  by  the  com- 
pany, and  continued  to  use  water  for  both  domestic  and  sprinkling 
purposes  until  January  1,  1899  ;  that  at  this  date  he  called  at  the  office 
of  the  company  in  Knoxville,  and  informed  its  officers  that  he  did  not 
desire  to  take  water  for  sprinkling  purposes,  but  did  desire  to  take 
water  for  domestic  purposes,  and  offered  then  to  pay  its  charges  for 
water  to  be  thus  used ;  that  his  reason  for  not  wishing  the  water  for 
sprinkling  purposes  was  that  during  the  winter  and  spring  seasons  na- 
ture's rains  furnished  the  water  free  of  charge,  and  he  had  no  need  of 
an  artificial  supply  for  sprinkling  purposes.  .  .  .  The  bill  further  states 
that  the  defendant,  February  1,  1899,  cut  oflf  his  domestic  supply  of 
water  altogether  from  his  premises,  because  he  would  not  pa}*  its  un- 
just charges  in  advance.     It  is  alleged  that  complainant's  sole  reliance 


HARBISON   V.   KNOXVILLE   WATER   CO.  389 

for  water  is  upon  the  defendant,  and  that,  if  it  is  allowed  to  cut  off  the 
suppl}',  he  will  be  put  to  great  cost,  expense,  and  anno\"ance  in  provid- 
ing himself  with  the  water  necessary  for  cooking,  washing,  and  other 
domestic  purposes.  It  is  said  in  the  bill  that  complainant  is  now  com- 
pelled, in  order  to  supply  himself  with  water  for  domestic  purposes,  to 
get  the  same  from  his  neighbor's  cistern,  across  the  street  from  him. 
The  charges  of  the  defendant  for  water  for  domestic  purposes  are 
tendered  with  the  bill.  The  complainant,  however,  denies  the  right  of 
the  defendant  to  cut  off  his  water  supply  because  its  charges  therefor 
were  not  paid  in  advance.  He  also  denies  the  right  of  the  defendant 
company  to  exact  from  its  patrons,  as  a  condition  precedent  to  furnish- 
ing them  with  water,  its  price  or  charges  for  said  water  for  three  months 
in  advance,  or  for  any  other  period  in  advance.  The  rules  and  regula- 
tions of  the  company  in  this  regard  are  assailed  as  unjust,  oppressive, 
and  unreasonable.  The  praj'er  of  the  bill  is  for  an  injunction  compel- 
ling defendant  to  abstain  from  cutting  off  the  water  supply  of  complain- 
ant for  domestic  purposes,  and  for  a  mandator}'  injunction  compelling 
defendant  to  furnish  complainant  water.  A  decree  is  also  asked  estab- 
lishing and  declaring  complainant's  rights  in  the  premises,  under  the 
facts,  and  especially  for  a  decree  compelling  the  defendant  to  furnish 
complainant  water  for  domestic  purposes  without  requiring  him  to  in- 
jure, remove,  or  destroy  the  pipe  or  faucet  placed  by  him  upon  his 
hydrant,  and  without  requiring  him  to  take  and  pay  for  the  water  for 
the  entire  season  as  fixed  by  defendant,  and  without  requiring  him  to 
pay  in  advance  therefor.  The  rules  of  the  company  exacting  these 
requirements  are  asked  to  be  set  aside,  as  unreasonable  and  oppressive, 
and  as  be3'ond  the  power  of  defendant  to  establish.  An  injunction 
issued  under  the  praj'er  of  this  bill. 

The  defendant  water  compan}^  answered  the  bill  in  full. 

Chancellor  Kyle  heard  the  case  upon  the  whole  record  August  3,  1899. 
He  held  that  the  complainant  was  not  entitled  to  the  relief  sought  in 
his  bill,  nor  to  anj-  relief,  and  thereupon  dismissed  the  bill,  with  costs. 
The  defendant  thereupon  moved  the  court  for  a  reference  to  the  master 
to  ascertain  and  report  the  damages  due  the  defendant,  sustained  by 
reason  of  the  injunction  sued  out.  The  court,  however,  was  of  opinion 
that  this  reference  should  not  be  executed  until  after  the  hearing  of 
the  appeal  pra3'ed  by  the  complainant.  The  complainant  prayed  and 
was  granted  an  appeal  to  the  Supreme  Court,  and  has  assigned  errors. 
The  errors  assigned  are :  First.  Error  in  dismissing  the  bill  of  com- 
plainant and  in  denying  him  relief  Second.  Error  in  the  chancellor  in 
refusing  to  decree  that  the  defendant  could  not,  as  a  condition  prece- 
dent to  furnishing  the  complainant  water  for  domestic  purposes  only,  re- 
quire him  to  remove  or  cut  off  the  threads  from  the  nozzle  of  his 
hydrant.  Third.  Error  in  not  holding  that  the  defendant  had  no  right, 
as  a  condition  precedent  to  furnishing  water  for  domestic  purposes,  to 
require  him  to  pay  for  water  for  both  domestic  and  sprinkling  purposes 
in  advance.     Fourth.  Error  in  not  holding  that  the  defendant  had  no 


390  HARBISON   V.    KNOXVILLE   WATEE  CO. 

right,  as  a  condition  precedent  to  furnishing  complainant  water  for 
sprinkling  purposes,  to  require  him  to  take  and  to  p&y  for  the  same  for 
an  entire  season,  extending  from  April  to  November  of  each  season. 
Fifth.  Error  in  not  holding  that  defendant's  rules,  under  and  b}'  virtue 
of  which  it  assumed  the  right  to  do  the  things  above  complained  of, 
were  unjust,  oppressive,  harsh,  unreasonable,  and  illegal.^ 

Wilson,  J.  The  law  is  well  settled  that  water  companies  organized 
and  invested  with  the  powers  given  the  defendant  company,  and  obli- 
gated to  furnish  cities  and  their  inhabitants  with  water,  are  in  the  na- 
ture of  public  corporations,  engaged  in  a  public  business,  and  are 
charged  with  the  public  dut}-  of  furnishing  to  the  cities  and  their  in- 
habitants water,  alike,  and  without  discrimination  and  without  denial, 
except  for  ground,  and  upon  sufficient  cause.  It  is  equall}'  well  set- 
tled that  such  companies,  while  thus  charged  and  obligated,  may 
adopt  reasonable  rules  for  the  conduct  of  their  business  and  the  op- 
eration of  their  plants,  and  such  rules  are  binding  on  their  patrons, 
and  may  be  enforced,  even  to  the  extent  of  denying  water  to  those  who 
refuse  to  comply  with  them.  In  support  of  these  propositions,  we 
need  only  refer  to  the  cases  of  Crumley  r.  Water  Co.,  99  Tenn.  420,  41 
S.  AV.  1058  et  seq.,  and  Water  Co.  v.  Wolfe,  99  Tenn.  429,  41  S.  W. 
1060  et  seq.  and  the  opinions  therein  prepared  by  Mr.  Justice  Cald- 
well, where  numerous  authorities  are  referred  to  and  commented  on. 
In  these  cases  the  rule  is  announced  that  a  water  company  cannot  re- 
fuse to  furnish  water,  upon  the  tender  of  its  charges  therefor,  on  the 
ground  that  the  applicant  is  indebted  to  it  for  a  previous  suppl}'  of 
water,  which  he  refuses  or  is  unable  to  pay  for.  It  is  further  announced 
in  the  latter  of  the  cases  that  a  regulation  of  the  company  requiring 
patrons  to  keep  their  hydrants  closed,  except  when  using  the  water, 
is  reasonable,  and  that  a  refusal  to  compl}'  with  this  rule  of  the  com- 
pany justifies  it  in  refusing  to  supply  water  to  the  party  so  refusing, 
although  under  legal  obligation  to  do  so  upon  his  compliance  with  its 
reasonable  regulations.  The  question,  therefore,  in  ever}-  case  of  this 
character,  is  the  reasonableness  or  unreasonableness  of  the  rule  assailed 
by  the  citizen  asking  for  a  supply*  of  water,  and  invoked  by  the  com- 
pany in  justification  of  its  refusal  to  furnish  it.  The  rules  of  the  com- 
pany assailed  in  this  case  are,  in  brief:  (1)  That  the  citizens  shall  pay 
in  advance  for  a  quarter  of  a  j-ear  for  a  supply  of  water  for  domestic 
purposes ;  (2)  that,  if  the  citizen  take  water  for  sprinkling  purposes, 
he  must  do  so  for  the  season  in  each  year  fixed  by  the  company  (that 
is,  from  April  1st  to  November  1st),  and  pay  for  the  same  in  advance ; 
(3)  that  the  companj'  will  not  furnish  water  for  domestic  purposes, 
although  its  charges  therefor  for  the  quarter  are  tendered  in  advance, 
unless  the  applicant  also  takes  water  for  sprinkling  purposes,  if  the 
application  come  in  the  sprinkling  season  fixed  by  it,  or  unless  the  ap- 
plicant removes  the  appliances  of  his  hjdrant,  or  puts  it  in  such  cou- 

1  This  statement  of  facts  is  taken  from  the  statement  of  Wi  lsox,  J.  —  Ed. 


HARBISON   V.   KNOXVILLE   WATER   CO.  391 

dition  that  he  cannot  use  it  to  get  water  for  sprinkling  purposes.  In 
Tacoma  Hotel  Co.  u.  Tacoma  Light  &  Water  Co.,  3  Wash.  797,  28  Pac. 
516,  14  L.  R.  A.  669,  a  rule  requiring  a  deposit  of  money  to  guarantee 
the  payment  of  the  price  of  gas  used,  and  authorizing  the  companj-  to 
discontinue  furnishing  gas  unless  the  rule  was  complied  with,  was  held 
to  be  reasonable.  In  Shiras  v.  Ewing,  48  Kan.  170,  29  Pac.  320,  a 
rule  of  the  water  company  to  shut  off  the  supply  of  a  patron  who  wastes 
it  was  upheld  as  reasonable.  In  People  v.  Manhattan  Gaslight  Co.,  45 
Barb.  136,  the  rule  of  the  gas  company  giving  it  the  right  to  refuse  to 
furnish  a  customer  with  gas  until  he  paid  his  past-due  gas  bills  was 
held  not  unreasonable.  The  holding  of  the  case  last  cited,  we  take  it, 
is  in  conflict  with  the  rule  announced  in  Crumley  v.  Water  Co.,  sv2)ra. 
The  above  principle  announced  in  the  New  York  case  is  also  repudiated 
in  the  case  of  Gaslight  Co.  v.  CoUiday,  25  Md.  1.  See,  also,  Lloyd  v. 
Gaslight  Co.,  1  Mackey,  331.  The  case  of  Shepard  v.  Gaslight  Co.,  6 
Wis.  539,  and  extended  note  thereto,  give  a  full  and  clear  statement  of 
the  law  applicable  to  the  duties  and  powers  of  gas  companies,  whose 
relations  to  the  public  are  closely  analogous  to  water  companies  char- 
tered to  supply  cities  and  their  inhabitants  with  water.  In  this  case  it 
was  held  that  the  gas  company  had  the  right  to  make  such  needful 
rules  and  regulations  for  its  own  convenience  and  securit}-,  and  for  the 
safet}'  of  the  public,  as  are  just  and  reasonable,  and  to  exact  from 
the  consumer  of  its  product  a  promise  of  conformity  thereto.  Under 
this  general  principle,  it  was  held  that  the  company  had  the  right  to 
demand  security  for  the  gas  consumed,  or  a  deposit  of  money  to  secure 
payment  therefor.  A  rule  of  the  company-,  however,  requiring  the 
citizen  to  agree  to  free  access  to  his  house  and  premises  at  all  times 
by  the  inspector  of  the  company  for  the  purpose  of  examining  the  gas 
appliances,  and  to  remove  the  meter  and  service  pipe,  was  held  to  be 
too  general  in  its  scope,  and  therefore  unreasonable  and  be3'ond  the 
power  of  the  company  to  enforce.  A  rule  of  the  company  reserving 
to  it  the  right  at  any  time  to  cut  off  the  communication  of  the  service 
whenever  it  found  it  necessary  or  deemed  it  necessar}'  to  do  so,  to  pro- 
tect its  works  against  abuse  or  fraud,  was  also  held  to  be  unreason- 
able. In  this  connection  the  court  said  that  the  company  must  rely 
for  protection  against  fraud  upon  the  same  tribunals  that  the  law  pro- 
vides for  individuals.  It  was  further  adjudged  in  the  case  that  the 
company  had  no  power  to  impose  a  penalty  for  the  violation  of  one  of 
its  regulations,  and  that  it  had  no  right  to  make  submission  to  such 
penalty  a  condition  precedent  to  the  right  of  the  citizen  to  be  furnished 
with  gas.  See,  also,  the  following  additional  cases  for  further  illus- 
tration of  the  general  rule,  and  its  application  to  particular  instances  ; 
American  Water  Works  Co.  v.  State,  46  Neb.  194,  64  N.  W.  711,  30 
L.  R.  A.  447;  Williams  v.  Gas  Co.,  52  Mich.  499,  18  N.  W.  236; 
State  V.  Nebraska  Tel.  Co.,  17  Neb.  126,  22  N.  W.  237 ;  City  of  Rush- 
ville  «.  Rushville  Nat.  Gas  Co.,  132  Ind.  575,  28  N.  E.  853,  15  L.  R. 
A.  321,  note,  and  cases  cited;  Water  Co.  v.  Adams,  84  Me.  472,  24 


392  HARBISON   V.    KNOXVILLE   WATER   CO. 

Atl.  840,  and  cases  cited.  In  the  case  last  referred  to  it  was  ruled 
that  a  regulation  of  the  water  company,  that  one  year's  rent  would  be 
required  in  all  cases,  payable  in  advance,  on  the  1st  day  of  July  each 
year,  was  unreasonable  and  could  not  be  enforced,  and  therefore  a 
year's  rent  could  not  be  collected  from  a  party  who  had  used  water 
only  for  a  few  months.  It  was  further  ruled  in  that  case  that  a  con- 
tract to  pay  for  water  according  to  the  regulations  of  the  company 
would  not  be  implied  from  a  knowledge  of  such  regulations,  if  Xhey 
were  unreasonable. 

A  review  of  these  and  other  authorities  shows,  we  think,  that  the 
regulation  of  the  defendant  company  requiring  a  prepayment  of  a 
quarter's  rent  for  a  water  supply  for  domestic  purposes  is  reasonable. 
We  are  not  dealing  with  a  case  where  the  residence  of  the  consumer  is 
metered,  and  the  exact  quantity  used  b}'  him  can  be  measured.  In 
such  case  the  party  pays  for  the  water  actually  consumed  b}-  him,  at 
the  scale  of  prices  fixed  by  the  company,  assuming  its  charges  to  be 
reasonable.  In  the  case  at  bar  the  complainant  gets  his  water  from  a 
hydrant  in  his  3'ard,  connected  with  the  service  pipe  of  the  compan}-, 
and  the  rule  of  the  company  fixes  the  quarter  rent.  Pajing  this  rent, 
he  is  limited  to  the  consumption  of  no  definite  quantity  of  water.  The 
only  limitation  upon  his  use  of  it,  so  far  as  we  gather  from  the  record, 
is  an  implied  one,  that  he  must  not  waste  it ;  and,  if  he  does  waste 
it,  the  company,  under  the  authorities  cited,  can  cut  off  the  supply. 
But,  in  a  controversy  over  this,  the  courts,  we  take  it,  are  the  tribunals 
to  ultimately  settle  it,  and  not  the  compan}'.  The  rule  or  requirement 
of  the  company  that  the  party  taking  and  paying  for  water  for  domes- 
tic purposes  onlj*  must  put  his  h3drant  appliances  in  condition  for  such 
use  only,  and  not  have  it  in  a  condition  to  use  water  through  and  from 
them  for  sprinkling  purposes,  unless  he  pays  a  reasonable  rental  for 
the  use  for  the  latcer  purpose,  is,  we  think,  reasonable,  and  one  that 
the  company  can  enforce.  Such  a  regulation  for  the  sale  of  its  water 
furnished  through  hjdrants,  where  the  quantity  used  cannot  be  or  is 
not  measured,  is  essential  to  protect  the  rights  and  safety  of  the  com- 
pany, and  may  be  necessary  to  enable  it  to  meet  its  obligations  to  the 
public,  and  its  duty  to  furnish  water  to  all  inhabitants  of  the  city  alike 
and  without  discrimination.  In  determining  the  reasonableness  or  un- 
reasonableness of  a  rule  adopted  by  a  water  company  chartered  to 
supply  a  city  and  its  people  with  water,  we  must  necessaril}'  take  into 
consideration  its  relation  to  the  city,  and  its  compacted  population,  and 
the  various  elements  composing  such  a  population.  It  has  no  right  to 
base  a  rule  on  the  theory  that  the  population,  as  a  whole,  is  dishonest. 
But  it  has  the  right  to  adopt  a  rule  which,  while  giving  the  honest  citizen 
what  he  pays  for,  will  prevent  the  dishonest  from  getting  what  he  never 
paid  for,  and  never  intended  to  pay  for,  and  said  he  never  wanted.  It 
may  be  doubted  whether  the  compan\-  has  the  right  to  make  an  arbi- 
trary rule  requiring  the  citizen  to  pay  for  water  taken  through  his  hydrant 
for  sprinkling  purposes  for  seven  months  in  the  year,  when  he  does 


BROWN   V.    WESTEKN   UNION   TELEGRAPH   GO.  393 

not  want  it  and  does  not  need  it  for  that  purpose  for  that  length  of 
time.  As  we  understand  the  relation  of  the  complainant  to  the  com- 
pan}-  in  respect  to  this  point,  under  the  facts  averred  in  his  bill,  this 
question  is  not  necessarily  in  the  case.  If,  when  he  wants  water  for 
sprinkling  purposes,  he  will  put  his  water  appliances  in  condition  for 
its  use  for  this  purpose,  and  apply  to  the  company  for  water  for  this 
purpose  for  a  less  period  of  time  than  for  the  whole  sprinkling  season 
fixed  by  the  compan}',  tendering  it  a  reasonable  price  for  the  water 
thus  demanded,  he  will  raise  and  present  the  question  of  the  reason- 
ableness or  unreasonableness  of  the  rule  of  the  compan}'  on  this  mat- 
ter assailed  b\'  the  bill.  As  we  have  held,  it  was  the  duty  of  complainant 
to  put  his  hydrant  and  its  appliances  in  a  condition  to  get  water  alone 
for  domestic  purposes,  when  he  wanted  it  only  for  that  purpose.  Fail- 
ing to  put  them  in  condition  to  use  water  alone  for  domestic  purposes 
while  he  wanted  water  for  this  purpose  alone,  he  had  no  right  to  de- 
mand that  the  company'  furnish  him  water  for  domestic  purposes  and 
agree  to  furnish  him  water  for  sprinkling  purposes  at  some  indefinite 
time  in  the  future,  and  for  an  indefinite  period  thereafter,  as  he  might 
call  for  it  or  need  it.  Such  a  demand,  it  seems  to  us,  ignores  the  recip- 
rocal relations  and  duties  existing  between  city  water  companies  and 
the  inhabitants  of  the  cities  they  are  organized  to  supply  with  water. 
There  is  no  error  in  the  decree  of  the  chancellor,  and  it  is  aflarmed, 
with  costs. 

The  other  judges  concur. 


BROWN  V.  WESTERN  UNION   TELEGRAPH   CO. 

Supreme  Court  of  the  Territory  of  Utah,  1889. 

[6  Utah,  219.] 

JuDD,  J.  This  is  an  action  brought  by  the  plaintiff  against  the  de- 
fendant in  the  District  Court  at  Ogden  City.  The  facts  of  the  case  show 
that  on  the  8th  of  April,  1888,  between  5  and  6  o'clock  in  the  evening, 
the  plaintiff,  a  girl  about  five  years  old,  had  her  hand  badh'  mashed, 
and  to  such  an  extent  that  her  forefinger  of  the  right  hand  was  broken 
at  the  middle  joint.  It  seems  that  she,  together  with  other  children, 
were  engaged  playing  upon  the  turn-table  of  the  railroad  at  a  station 
called  Promontory,  in  Box  Elder  Count}',  Utah  Territory,  about  50  miles 
north  of  Ogden  City.  That  when  her  father  discovered  her  injurj',  — 
there  being  no  ph3'sician  that  could  be  reached  nearer  than  Ogden  Cit\', 

—  he  at  once  telegraphed  to  that  city  for  a  physician.  To  this  telegram 
he  received  an  answer  that  the  physician  could  not  come.  Immediately 
upon  the  receipt  of  the  telegram  from  the  physician  he  sent  the  follow- 
ing :  "  Promontory,  April  8th,  1888.     To  J.  R.  Brown,  Ogden,  Utah. 

—  Send  doctor  on  first  train.    Katy  has  broken  her  finger.    T.  G. 


394  BBOWN   V.    WESTERN   UI'ION  TELEGRAPH  CO. 

Brown."     This  telegram  was  received  bj'  the  agent  of  the  defendant 
at  Promontor}-,  who  was  likewise  the  agent  of  the  railroad,  at  6.30 
o'clock,  Promontory  time,  —  7.50  Ogden  time.      Trains   left  Ogden, 
going  west,  one  at  7  p.  m.,  and  one  at  11,30  at  night.     This  despatch 
was  not  delivered  by  the  compan}'  to  Brown  nntil  7.35  a.  m.  the  next 
day.     The  testimon}-  sufflcientl}'  shows  that  if  the  despatch  had  been 
delivered  to  Brown  at  Ogden,  that  he  would  have  procured  a  physician 
to  go  to  Proraontor}',   who  would  have  left  on  the  11.30  train,  and 
arrived  at  Promontory  at  2  o'clock.     As  it  was  no  physician  reached 
the  plaintiff  that  night,  and  the  next  morning  her  father  took  her  upon 
the  train,  and  arrived  at  Ogden  at  10  o'clock  on  the  morning  of  the  9th. 
When  tlie  father  arrived  at  Ogden  he  at  once  took  her  to  the  office  of 
a  pliysician  and  surgeon  by  the  name  of  Bryant,  who  found,  as  he 
states,  that  the  fore  part  of  the  finger,  from  where  it  was  broken,  was, 
to  use  his  own  language,  "  dead  ;  "  that  by  twisting  the  finger  around, 
or  by  some  other  means  not  entireh*  described,  tlie  circulation  had  been 
strangled  ;  and  that  he  found  it  in  such  a  condition  that  it  was  impossi- 
ble to  re-establish  circulation,  and  that  amputation  was  necessary-,  and 
he  amputated  it  at  the  middle  joint.     The  action  of  the  plaintiff  against 
the  defendant  is  founded  upon  the  idea  that  if  tlie  despatch  sent  to 
Brown  had    been  delivered  in  proper   time  a  physician  would   have 
arrived  at  Promontory  at  the  hour  of  2  o'clock  that  night  after  the 
accident,  and  that  the  finger,  b}'  proper  surgical  treatment,  could  have 
been  saved,  and  the  plaintiff  saved  of  much  pain  and  suffering.     This 
theor}'  of  the  case  is  put  in  issue  by  the  defence  and  the  ground  taken 
is,  Jirst,  that  the  proof  does  not  show  that  the  final  amputation  of  the 
finger  was  the  result  of  any  delay  in  procuring  a  physician,  and  that  it 
was  probabl}'  the  result  of  the  accident  which  so  badly  damaged  the 
finger ;  and  that  in  any  event  amputation  would  have  been  necessarj', 
and  that  the  delay  and  negligence,  if  anj-,  of  the  defendant,  was  not 
the  proximate  cause  of  the  loss  of  the  finger,  and  the  pain  and  suffer- 
ing ;  and  therefore  the  defendant  alleges  that  it  is  not  liable  ;  and  for 
further  defence  it  sets  up  that  the  manager  of  the  defendant  compan}' 
in  charge  of  the  oflftce  in  Ogden  had  established  certain  rules  with 
reference  to  the  delivery  of  despatches  from  that  office,  and  that  those 
rules  were  reasonable,  and  that,  all  other  questions  aside,  it  is  not  liable. 
It  alleges  and  shows  by  the  proof  that,  the  day  of  the  reception  of 
this  despatch  at  Promontory  and  its  transmission  to  Ogden  City  being 
Sunday,  its  office  hours  were  from  8  to  10  o'clock  a.  m.  and  4  to  6  p.  m., 
and  that  on  week-days  from  7.30  a.  m.  to  8  p.  m.     That  this  despatch, 
being  received  at  Ogden  at  8  o'clock  and  9  minutes,  was  more  than 
two  hours  after  the  office  hours  established  for  this  office,  and,  to  use 
the  language  of  the  brief  of  the  counsel  for  the  defendant,   "  these 
hours  being  reasonable,  the  corapan}'  was  not  bound  to  deliver  the 
despatch  received  outside  of  the   hours,   no  matter  what  the  conse- 
quences may  have  been." 

So  far  as  the  first  point  of  the  defence  is  concerned,  —  that  is,  *'  that 


BROWN   V.   WESTERN   UNION   TELEGRAPH   CO.  395 

the  proof  does  not  sufficiently  show  that  the  result  to  the  plaintiff  would 
have  been  different  had  the  despatch  been  delivered,"  —  this  court  is 
content  to  observe  that  all  those  matters  were  submitted  fairly,  and 
under  proper  instructions  by  the  trial  judge  to  the  jury,  and,  the  jury 
having  found  against  the  defendant,  the  rule  of  this  court  is  that  it  will 
not  disturb  the  verdict  of  a  jury  where  the  evidence  tends  to  support  it, 
and  under  that  rule  this  case  falls.     But  the  more  important  question 
arises  on  the  ground  as  to  the  right  of  the  defendant  to  establish  rules 
for  its  guidance  in  the  delivery  of  telegrams.     It  will  be  remembered 
that  this  telegram  was  received  at  Promontory,  and  the  money  paid 
for  its  transmission  to  the  Ogden  office,  and  that  it  was  transmitted  in 
due  time  to  the  last-named  office ;    and  the  only  complaint,  when  the 
case  is  stripped  of  verbiage,  is  that  the  defendant  company  were  guilty 
of  negligence  in  failing  to  deliver  this  telegram  when  it  reached  Ogden 
Cit}'  from  that  office  to  Brown,  the  person  to  whom  it  was  sent ;    and 
the  direct  defence  of  the  defendant  is  that  it  was  received  after  its 
office  hours,  which  it  had  the  right  to  establish,  and  that  therefore 
there  was  no  negligence.     In  other  words,  the  defendant  saj's  *•'  that  we 
have  the  right  to  establish  hours  for  the  transmission  and  deliver}'  of 
despatches,  and  we  have  the  right  to  judge  of  the  reasonableness  of 
those  hours,  and  that,  so  long  as  we  are  within  the  observance  of  the 
rules  and  hours  which  we  have  established,  we  are  guilty  of  no  negli- 
gence ; "  the  argument  being  that  the  public  is  bound  to  take  notice  of 
the  hours  and  rules  that  "  we  have  established  for  business."     Can  this 
contention  be  sanctioned,  is  the  important  question  which  arises  in  this 
case.     Whether,  if  a  telegram  were  tendered  the  compan\'  to  be  sent 
b}'  them  out  of  their  office  hours,  they  would  be  bound  to  receive  and 
send  it,  is  a  question  with  which  the  court  is  not  now  dealing,  and 
upon  which  it  expresses  no  opinion  ;   but  we  are  of  the  opinion  that, 
having  received  and  transmitted  this  despatch,  the  measure  of  diligence 
to  be  applied  to  the  conduct  of  the  defendant,  with  reference  to  its  de- 
liver}-,  is  not  to  be,  and  cannot  be,  decided  by  any  rules  or  Iiours  that 
the  company  mav  see  fit  to  establish.     Whether  in  the  individual  case 
the  rules  of  the  company  are  or  are  not  reasonable,  or  whether  it  is  or 
is  not  guilty  of  negligence  in  failing  to  deliver  a  message,  is  a  question 
which  the  court  will  not  allow  the  company  to  decide.     It  is  a  funda- 
mental rule  in  the  administration  of  remedial  justice  that  courts  claim 
and  exercise  for  themselves  the  right  to  adjudge  in  each  individual 
case  as  it  may  be  presented  the  question  of  whether  the  parties  sued 
are  or  are  not  guilty  of  wrong,  with  reference  to  the  particular  trans- 
actions under  investigation.     Whether  the  rules  established  by  the 
defendant  are  reasonable  or  not,  as  we  have  said,  is  a  question  to  be 
decided  by  the  court  or  jury,  as  the  case  may  be,  in  each  individual 
case  as  it  arises.     It  will  not  do  to  say  that,  because  the  company  has 
the  right  to  establish  rules  for  its  government,  therefore  those  rules 
determine  the  question  of  negligence  or  no  negligence.     It  must  be 
remembered  that  this  defendant,  in  offering  its  services  to  the  public, 


396  BROWN    V.   WESTERN   UNION  TELEGRAPH   CO. 

and  receiving  the  monej'  of  people  for  sending  despatches  from  one 
point  to  another,  is,  to  say  the  least  of  it,  occupying  the  position  of  a 
public  institution.  In  the  language  of  Chief  Justice  VVaite,  in  llie  case 
of  Munn  r.  Illinois,  94  U.  S.  113 :  ''  When  the  owner  of  property  de- 
votes it  to  a  use  in  which  the  public  has  an  interest,  he  in  eflfect  grunts 
to  the  public  an  interest  in  such  use,  and  must  to  the  extent  of  that 
interest  submit  to  be  controlled  by  the  public  for  the  common  good,  as 
long  as  he  maintains  the  use."  This  defendant  company,  by  its  invita- 
tion to  the  public  to  use  its  lines  for  the  transmission  of  messages, 
impliedl}'  grants  to  the  public  an  interest  in  the  use  of  its  wires,  and, 
having  done  this,  like  all  other  institutions  of  like  character,  its  rules 
and  regulations  are  at  all  times  open  to  inquir}'  as  to  their  reasonable- 
ness, and  its  conduct  is  at  all  times  open  to  inquir}-,  as  to  whether  it  is 
guilty  of  negligence  or  not.  We  are  of  the  opinion  that  the  question 
in  this  case  of  the  reasonableness  of  these  rules  of  the  compan}'  was 
properly  submitted  to  the  }\xvy  ;  and  we  are  also  of  the  opinion  that  the 
question  of  whether  this  company  was  guilty  of  negligence  in  failing  to 
deliver  the  despatch  was  properly'  submitted  to  the  jury  ;  and  in  both 
instances  the  jury  found  against  the  defendant. 

In  order  that  there  may  be  no  misunderstanding  as  to  the  judgment 
of  the  court  in  the  case,  we  lay  down  the  following  rule  as  applicable 
to  the  facts  in  the  case  :  It  will  be  observed  that  this  despatch  was  in 
plain,  unambiguous  language.  It  said:  "  Send  doctor  on  first  train. 
Kat}'  has  broken  her  finger."  When  that  despatch  was  received  at 
Proraontor}'  for  transmission,  and  when  it  was  received  at  Ogden  by 
the  agents  of  the  defendant,  the  supreme  importance  of  prompt  and 
active  service  upon  the  part  of  the  defendant's  agents  in  delivering  that 
telegram  was  made  manifest  from  its  very  reading,  and  we  hold  that 
the  degree  of  diligence  required  of  the  defendant  was  equal  in  impor- 
tance to  the  emergence'  of  the  occasion,  and  this  without  any  regard  to 
rules  and  hours  established  b}-  the  company,  as  testified  to  in  this 
regard.  It  must  be  kept  in  mind  that  this  compan}'  at  Promontor}-, 
by  its  agent,  received  this  despatch,  and  received  the  mone}'  for  its 
transmission,  and  that  it  was  transmitted  to  the  office  at  Ogden  ;  that 
this  despatch  was  to  the  effect  that  a  child  was  suffering  with  a  broken 
finger ;  that  it  was  important  that  a  physician  and  surgeon  be  immedi- 
ately sent ;  and  to  allow  the  defendant,  upon  the  pretext  that  it  was 
received  out  of  its  office  hours,  to  let  it  lie  there  until  7.35  the  next 
morning,  and  then  to  excuse  it  from  delivery  under  such  circumstances 
would  be  the  greatest  injustice.  It  would  be  to  put  the  public  at  the 
mercy  entirely,  or  we  may  sa)'  the  caprice  and  will,  of  public  institu- 
tions, to  which  they  are  compelled  to  resort  in  the  transaction  of 
business.  So  far  as  the  receipt  and  deliver}'  of  telegrams  with  refer- 
ence to  commercial  transactions  are  concerned,  we  do  not  express  an 
opinion,  but  we  do  not  hesitate  to  sa}-  that  when  a  despatch  shown  to 
be  received  by  the  company  for  transmission,  which  upon  its  face 
demonstrates  the  importance  of  delivery,  as  in  this  case,  the  degree  of 


WESTERN  UNION  TELEGRAPH  CO.  V.   NEEL.         397 

diligence  is  to  be  in  proportion  to  the  exigencies  of  that  case.  Nor 
has  the  defendant  the  right  to  complain  at  this.  It  sets  itself  up  as  a 
transmitter  of  messages  for  the  public,  and  it  receives  franchises  from 
the  State,  in  order  that  it  ma}'  do  business  ;  it  receives  money  from  the 
public  for  the  transmission  of  messages,  and,  like  all  other  institutions, 
it  should  be  willing  to  deal  with  the  public  in  a  fair  and  just  manner, 
and  not  undertake  to  screen  itself  behind  mere  office  rules  and  hours, 
■which  in  all  probabilit}'  are  made  for  the  mere  convenience  of  the 
eraplo^-ees  ;  and  especially  in  cases  like  this,  where  human  pain,  suffer- 
ing, and  deformation  hang  upon  prompt  action.  Nor  are  these  views 
new,  but  find  ample  authority  in  adjudged  cases  of  high  respectability. 
As  a  sample  we  cite  the  cases  of  Telegraph  Co.  v.  Broesche,  10  S.  W. 
Rep.  734,  and  Telegraph  Co.  v.  Sheffield,  10  S.  W.  Rep.  752.  Other 
cases  could  be  cited,  but  the  foregoing  are  sufficient.  The  case  was 
fairly  submitted  b}'  the  court  to  the  jur}-,  under  instructions  in  some 
respects  more  favorable  to  the  defendant  than  the  law  warranted,  and 
we  are  satisfied  that  substantial  justice  has  been  reached,  and  the 
judgment  of  the  court  below  will  be  affirmed,  with  the  costs. 


WESTERN  UNION  TELEGRAPH  CO.   v.  NEEL. 
Supreme  Court  of  Texas,  1894. 

[86  Tex.  368.] 

Gaines,  J.  "  Upon  the  trial  of  the  above  entitled  cause  in  the  court 
below,  it  was  shown,  that  Jodie  Roden,  a  sister  of  the  appellee  Ella 
Neel,  was  lying  at  the  point  of  death  at  her  home  near  Hope,  in  Lavaca 
County  ;  that  a  brother  of  appellee  went  to  the  town  of  Yoakum,  where 
appellant  had  an  office,  about  4  o'clock  in  the  morning  of  July  29, 
1891,  and  caused  a  telegram  to  be  sent  to  Cuero  to  be  addressed  to 
Mrs.  Neel,  care  of  the  Dromgoole  Hotel,  asking  her  to  come  to  her 
sister  at  once.  The  telegram  was  received  at  Caero  about  4.50 
o'clock,  but  was  not  delivered  until  about  10  o'clock  on  the  same 
morning.  Mrs.  Neel  set  out  at  once  to  go  to  her  sister,  but  Mrs. 
Roden  had  died  when  Mrs.  Neel  arrived.  If  the  telegram  had  been 
delivered  promptly  when  it  was  received  at  Cuero,  Mrs.  Neel  could 
have  reached  her  sister  before  she  died. 

"  In  defence  of  this  suit  for  failure  to  deliver  said  telegram  promptly, 
the  appellant  pleaded  and  proved,  that  its  office  hours  at  Cuero  were 
from  7  o'clock  a.m.  to  7  o'clock  p.  m.,  and  that  the  messenger  did  not 
reach  the  office  until  7  o'clock  a.  m.  ;  and  there  was  evidence  that  after 
this  hour  the  telegram  was  promptly  delivered ;  and  it  alleged  that  the 
fixing  of  office  hours  was  a  reasonable  regulation,  that  it  was  permitted 
by  law  to  make. 


398  WESTERN   UNION   TELEGRAPH   CO.   V.   NEEL. 

"  The  court  charged  the  jury,  in  effect,  that  such  regulation  was  proper, 
but  that  the  sender  of  the  telegram  must  either  know  or  be  reasonably 
presumed  to  know  of  it,  or  be  informed  thereof  by  defendant's  agent. 

"  The  defendant  then  requested  the  following  instruction  to  the  jury : 
'All  messages  to  be  sent  by  telegraphic  wire  are  accepted  subject  to  the 
delays  ordinarilj'  incurred  during  transmission;  and  if  the  jury  believe 
from  the  evidence  that  the  defendant  company  had  reasonable  office 
hours,  during  which  it  delivered  telegraphic  messages  in  the  town  of 
Cuero,  it  was  not  b}'  law  compelled  to  deliver  messages  outside  of  said 
hours  ;  and  such  reasonable  business  hours  were  implied  in  the  contract 
between  the  plaintiff  and  defendant  compan}-,  if  such  contract  has  been 
proved,  unless  speciallj'  stated  or  understood  by  the  parties  to  said 
contract  that  the  services  to  be  performed  should  be  performed  other- 
wise than  in  the  usual  manner  and  subject  to  the  usual  rules  under 
which  the  company  does  business.' 

"  The  instruction  asked  b}-  the  defendant  was  pertinent,  because  if  the 
message  had  been  delivered  within  a  reasonable  time  after  7  o'clock, 
the  plaintiff  would  probably  not  have  had  time  to  see  'her  sister  before 
she  died." 

Upon  the  foregoing  statement,  which  we  have  quoted  from  the  cer- 
tificate of  the  Court  of  Civil  Appeals,  they  submit  to  us  the  following 
questions : 

"  Believing  that  it  has  .never  been  authoritativel}'  settled  by  our  Su- 
preme Court,  that  it  is  the  dut}'  in  such  case  of  the  telegraph  company 
to  give  notice  to  the  sender  of  a  despatch  of  the  office  hours  at  the 
receiving  office,  provided  they  are  established  and  reasonable,  and  that 
the  message  will  not  be  delivered  outside  of  such  office  hours,  we 
certify  for  the  decision  of  the  Supreme  Court,  which  arises  on  appeal 
to  this  court,  whether  or  not,  in  the  absence  of  proof  of  a  special  con- 
tract to  send  and  deliver  at  once,  and  the  absence  of  actual  notice  to 
the  sender  of  the  regulation  and  office  hours,  the  undertaking  of  the 
company  was  to  deliver  the  message  at  once. 

"  Should  the  instruction  have  been  given?" 

We  are  of  the  opinion,  that  under  the  circumstances  stated  in  the 
question,  it  was  not  the  duty  of  the  company  to  deliver  before  its  office 
hours,  and  that  the  requested  charge  should  have  been  given.  A  tele- 
graph compan}',  from  the  necessity  of  the  case,  must  have  power  to 
make  some  regulations  for  the  conduct  of  its  business  ;  and  when  such 
regulations  are  reasonable,  it  is  generally  conceded  that  a  party  who 
contracts  with  such  a  company  for  the  transmission  of  a  message  is 
bound  by  them,  provided  he  has  notice  of  their  existence.  But 
whether  or  not  he  is  bound  when  he  has  no  notice,  is  a  question  which 
is  by  no  means  settled.  We  concur  with  the  Court  of  Civil  Appeals  in 
holding  that  the  question  has  never  been  authoritatively  determined  in 
this  court. 

Under  the  peculiar  circumstances  of  the  case,  it  was  held  in  Western 
Union  Telegraph  Company  v.  Broesche,  72  Tex.  654,  that  the  fact 


WESTERN   UNION   TELEGRAPH   CO.   V.   NEEL.  399 

that  the  company's  office  at  the  delivering  station  was  closed  at  the 
time  the  despatch  was  transmitted,  did  not  exonerate  it  from  liability. 
But  the  agent  of  the  company  who  accepted  the  message  for  trans- 
mission testified,  that  he  knew  that  the  purpose  was  to  notify  the 
person  addressed  of  the  expected  arrival  of  the  dead  body  of  the  plain- 
tiffs wife  at  the  railway  station,  and  that  unless  it  was  delivered  on 
the  same  evening  the  corpse  would  reach  the  station  before  the  tele- 
gram. Having  received  the  plaintiffs  money,  knowing  his  object  in 
sending  the  message,  and  that  that  object  could  only  be  attained  b}- 
prompt  transmission  and  deliver}'  to  the  person  addressed,  it  could  not 
legally  urge  its  rules  as  to  office  hours  as  an  excuse  for  not  delivering 
the  despatch  until  the  next  day.  It  was  properly  held  estopped  to 
deny  that  the  contract  was  for  an  immediate  delivery. 

In  the  Bruner  case,  19  Southwestern  Reporter,  149,  it  would  seem 
that  the  defence  was  set  up,  that  at  the  time  the  despatch  was  taken 
for  transmission  the  office  to  which  it  was  to  be  sent  was  closed ;  but 
we  think  it  is  apparent  from  the  opinion  that  the  point  before  us  was 
not  involved.  The  court  in  their  opinion  sa}-:  "Appellant  accepted 
the  telegram  and  undertook  to  deliver  it  about  9  o'clock  at  night.  It 
cannot  be  excused  in  its  failure  to  perform  the  contract  because  its 
office  was  practically  closed  against  Alvin,  especially  since  it  does  not 
appear  that  anj-  effort  was  made  to  send  the  message  until  next  morn- 
ing, when  it  was  too  late  for  the  appellee  to  catch  the  train  to 
Galveston." 

Upon  the  more  general  question,  whether  a  party  to  a  contract  with 
a  telegraph  company  is  bound  by  the  rules  and  regulations  of  the  com- 
pany of  which  he  has  no  notice,  the  authorities  are  not  in  accord. 

In  Birne}'  v.  Telegraph  Company,  18  Md.  341,  the  court  sa}'^,  that  a 
person  delivering  a  message  for  transmission  "  is  supposed  to  know 
that  the  engagements  of  the  company  are  controlled  by  those  rules  and 
regulations,  and  does  himself  in  law  engraft  them  in  his  contract  of 
bailment,  and  is  bound  by  them."  The  doctrine  is  reaffirmed  in  Tele- 
graph Company  v.  Gildersleeve,  29  Md.  232  ;  but  is  questioned  by 
Judge  Thompson  in  his  work  on  the  Law  of  Electricity  (section  212). 
The  law  of  Maryland  expressly  provides  that  telegraph  companies  may 
make  rules  and  regulations,  and  the  opinions  in  the  cases  cited  lay 
stress  upon  that  fact ;  but  it  seems  to  us,  that  in  the  absence  of  a 
statute  the  power  is  necessaril}-  implied. 

In  Given  v.  Telegraph  Company,  24  Fed.  Rep.  119,  it  was  held,  in 
effect,  that  a  telegraph  company  could  establish  reasonable  office  hours, 
and  that  the  sender  of  a  message  was  presumed  to  contract  with  refer- 
ence to  such  a  regulation,  although  it  was  not  known  to  him  at  the  time 
that  he  entered  into  the  contract. 

In  Telegraph  Company  v.  Harding,  103  Ind.  505,  the  same  rule  was 
applied  in  an  action  for  the  recovery  of  a  penalty  given  by  statute  for 
the  failure  to  make  prompt  delivery  of  a  message ;  but  the  court  ex- 
pressly decline  to  say  that  it  ought  to  apply  to  an  ordinary  suit  for  the 


400  WESTERN   UNION  TELEGRAPH   CO.   V.   NEKL. 

recover}'  of  damages  for  the  breach  of  a  contract  to  transmit  a  tele- 
gram. The  court  quote  from  the  opinion  of  Mr.  Justice  Miller  in 
Given's  case,  supra ^  as  follows:  "  Nor  do  we  see  that  it  is  the  dut\' 
of  the  Western  Union  Telegraph  Companj'  to  keep  the  emplojees  of 
ever}'  one  of  its  offices  in  the  United  States  informed  of  the  time  when 
any  other  office  closes  for  the  night.  The  immense  number  of  these 
offices  over  the  United  States,  the  frequent  changes  among  them  as  to 
the  time  of  closing,  and  the  prodigious  volume  of  a  written  book  on 
this  subject,  seems  to  make  this  onerous  and  inconvenient  to  a  degree 
which  forbids  it  to  be  treated  as  a  duty  to  its  customers,  for  the  neglect 
of  which  it  must  be  held  liable  for  damages.  There  is  no  more  obliga- 
tion to  do  this  in  regard  to  offices  in  the  same  State  than  those  four 
thousand  miles  away,  for  the  communication  is  between  them  all  and 
of  equal  importance." 

In  Behm  v.  Telegraph  Company,  8  Bissell,  131,  Judge  Gresham,  in 
charging  the  jur}',  recognized  the  doctrine,  that  reasonable  regulations 
as  to  the  number  of  servants  at  small  stations  should  be  considered  in 
determining  the  question  of  diligence  in  the  deliver}-  of  a  message,  and 
that  the  absence  of  a  messenger  boy  at  dinner  might  be  a  just  excuse 
for  delay  in  such  delivery.     But  see  Tel.  Co.  v.  Henderson,  89  Ala.  510. 

Such  are  the  cases  bearing  immediately  upon  the  question  submitted 
for  our  determination.  There  are,  however,  some  railroad  cases  which 
seem  to  involve  a  similar  principle.  The  contract  of  a  railroad  com- 
pany with  a  passenger  is  to  carry  him  to  his  point  of  destination  under 
the  contract  without  unreasonable  delay.  Yet  it  is  held,  that  a  passen- 
ger who  procures  a  ticket  has  no  right  to  demand  an  immediate  carriage, 
and  must  wait  till  the  departure  of  the  regular  trains.  Hurst  v.  Rail- 
way, 19  C.  B.  N.  S.  310;  Gordon  v.  Railway,  52  N.  H.  596.  There 
are  delays  which  grow  out  of  the  necessary  regulation  of  the  business, 
for  which  the  carrier  cannot  be  held  responsible.  If  a  passenger,  on 
the  other  hand,  be  misled  by  the  company's  time  table,  and  buy  his 
ticket  upon  the  faith  of  it,  the  company  may  be  held  liable  for  not 
carrying  him  according  to  the  table.  In  an  English  case  of  this  char- 
acter the  action  was  sustained  on  the  ground  of  deceit.  Denton  v. 
Railway,  5  El.  &  Bl.  860. 

A  limit  as  to  the  number  of  its  trains  and  intervals  of  time  more  or 
less  extended  are  obviously  indispensable  to  the  conduct  of  the  busi- 
ness of  a  railway  company.  So  also  with  telegraph  companies. 
Although  not  absolutely  necessary,  some  regulations  as  to  office  hours 
and  as  to  the  number  of  employees  at  each  office  are  reasonably  re- 
quired for  the  successful  management  of  their  business,  both  in  their 
own  interest  and  in  that  of  the  public  in  general.  It  may  be  to  the 
interest  of  some  individual,  upon  a  particular  occasion,  or  even  at  all 
times,  that  every  office  of  a  telegraph  company  should  be  kept  open  at 
all  hotns,  and  that  the  working  force  should  be  sufficient  to  receive 
and  deliver  a  despatch  without  a  moment's  delay.  So  also,  it  may  be 
to  the  interest  of  a  ver}'  few  that  an  office  should  be  kept  at  some  point 


SEARS   V.   EASTERN   RAILROAD.  401 

on  the  line  where  an  office  could  not  be  maintained  in  any  way  without 
a  loss  to  the  company.  If  in  the  first  instance  the  company  should  be 
required  to  keep  the  necessary  servants  to  keep  its  business  going  at 
all  hours,  it  would  result  in  the  necessity  of  closing  many  offices  or  in 
the  imposition  of  additional  charges  upon  its  customers  in  general,  in 
order  to  recoup  the  loss  incident  to  their  being  maintained.  So  on  th» 
other  hand,  if  they  should  be  required  to  keep  offices  wherever  it  might 
result  to  the  convenience  of  a  few  persons,  additional  burdens  upon  the 
general  public  would  in  like  manner  result. 

It  follows,  we  think,  that  the  public  interest  demands  that  these 
companies  should  have  the  power  to  establish  reasonable  hours  within 
which  their  business  is  to  be  transacted,  and  that  individual  interests 
must  yield.  It  seems  to  us,  that  the  reasonableness  of  a  regulation  as 
to  hours  of  business  is  sufficiently  obvious  to  suggest  to  the  sender  of 
a  message  who  desires  its  delivery  at  an  unusually  early  hour  for  busi- 
ness, the  propriet}'  of  making  inquiry  before  he  enters  into  the  contract. 

In  the  application  of  the  principles  of  law  to  new  cases,  we  should 
proceed  with  caution,  and  therefore  we  deem  it  proper  to  say  that  our 
ruling  is  restricted  to  the  question  submitted.  Whether  the  rule  we 
have  announced  should  be  applied  to  other  regulations  by  telegraph 
companies,  we  leave  for  decision  when  the  question  maj"^  arise. 

This  opinion  will  be  certified  in  answer  to  the  questions  submitted. 


SEARS  V.   EASTERN  RAILROAD. 
Supreme  Judicial  Court  of  Massachusetts,  1867. 

[14  Allen,  433,] 

Action  containing  one  count  in  contract  and  one  in  tort.  Each 
count  alleged  that  the  defendants  were  common  carriers  of  passengers 
between  Boston  and  Lynn,  and  that  on  the  15th  of  September,  1865, 
the  plaintiff  was  a  resident  of  Nahant,  near  Lynn,  and  the  defendants 
before  then  publicl}'  undertook  and  contracted  with  the  public  to  run  a 
train  for  the  carriage  of  passengers  from  Boston  to  Lynn  at  nine  and 
one  half  o'clock  in  the  evening  each  week  day,  Wednesdays  and  Satur- 
days excepted ;  and  the  plaintiff,  relying  on  said  contract  and  under- 
taking, purchased  of  the  defendants  a  ticket  entitling  him  to  carriage 
upon  their  cars  between  Boston  and  L^nn,  and  paid  therefor  twentj-- 
five  cents  or  thereabouts,  and  on  a  certain  week  da}'  thereafter,  neither 
Wednesday  nor  Saturday,  namely,  on  tlie  15th  of  said  September,  pre- 
sented himself  on  or  before  the  hour  of  nine  and  a  half  o'clock  in  the 
evening  at  the  defendants'  station  in  Boston  and  offered  and  attempted 
to  take  the  train  undertaken  to  be  run  at  that  hour,  as  a  passenger,  but 
the  defendants  negligently  and  wilfully  omitted  to  run  the  said  train  at 

2" 


402  SEAKS   V.   EASTERN    liAILROAD. 

that  hour,  or  anj-  train  for  Lynn,  till  several  hours  thereafter ;  wherefore 
the  plaintiff  was  compelled  to  hire  a  livery  carriage  and  to  ride  therein 
to  Lynn  by  night,  and  was  much  disturbed  and  inconvenienced. 

The  following  facts  were  agreed  in  the  Superior  Court.  The  defend- 
ants were  common  carriers,  as  alleged,  and  inserted  in  the  Boston  Daily 
Advertiser,  Post,  and  Courier,  from  the  15th  day  of  August  till  the 
15th  day  of  September  an  advertisement  announcing  the  hours  at  which 
trains  would  leave  Boston  for  various  places,  and  among  others  that  a 
train  would  leave  for  Lynn,  at  9.30  p.m.,  except  Wednesdays,  when  it 
would  leave  at  11.15,  and  Saturdays,  when  it  would  leave  at  10.30. 

The  plaintiff,  a  resident  of  Nahant,  consulted  one  of  the  above 
papers,  about  the  9th  of  September,  1865,  for  the  purpose  of  ascertain- 
ing the  time  when  the  latest  night  train  would  start  from  Boston  for 
Lynn  on  the  15th,  in  order  to  take  the  train  on  that  day,  and  saw  the 
advertisement  referred  to.  On  the  15th,  which  was  on  Friday,  he 
came  to  Boston  from  Lynn  in  a  forenoon  train,  and  in  the  evening, 
shortlv  after  nine  o'clock,  presented  himself  at  the  defendants'  station 
in  Boston  for  the  purpose  of  taking  the  9.30  train  for  Lynn,  having 
with  him  a  ticket  which  previously  to  September  9th  he  had  purchased 
in  a  package  of  five.  This  ticket  specified  no  particular  train,  but  pur- 
ported to  be  good  for  one  passage  in  the  cars  between  Boston  and 
Lynn  during  the  3'ear  1865.  He  learned  that  this  train  had  been  post- 
poned to  11.15,  on  account  of  an  exhibition,  and  thereupon  hired  a 
buggy  and  drove  to  Lynn,  arriving  there  soon  after  10.30.  He  had 
seen  no  notice  of  any  postponement  of  this  train.  He  once,  in  1864, 
observed  a  notice  of  postponement,  and  heard  that  the  defendants 
sometimes  postponed  their  late  trains. 

For  several  years  before  1865  the  defendants'  superintendent  had 
been  accustomed  occasionally  to  postpone  this  train,  as  often  as  from 
once  to  three  times  a  month,  for  the  purpose  of  allowing  the  public  to 
attend  places  of  amusement  and  instruction,  and  also  upon  holidays 
and  other  public  occasions  in  Boston  ;  giving  notice  thereof  by  hand- 
bills posted  in  the  defendants'  cars  and  stations.  On  the  13th  of  Sep- 
tember, 1865,  in  pursuance  of  this  custom,  he  decided  to  postpone  this 
train  for  September  15th  till  11.15,  and  on  the  same  day  caused  notice 
thereof  to  be  printed  and  posted  in  the  usual  manner.  The  train  was 
so  postponed,  and  left  Boston  at  11.15,  arriving  at  Lynn  at  11.45. 

The  defendants  offered  to  prove,  if  competent,  that  this  usage  of  de- 
taining the  train  was  generally  known  to  the  people  using  the  Eastern 
Railroad,  and  that  the  number  of  persons  generally  going  by  the  post- 
poned train  was  larger  than  generally  went  by  the  9.30  train,  and  was 
larger  on  the  evening  in  question ;  but  at  the  station  in  Boston  there 
were  persons  complaining  of  the  postponement  of  the  train,  and  leaving 
the  station. 

It  was  agreed  that,  if  on  these  facts  the  plaintiff  was  entitled  to  re- 
cover, judgment  should  be  entered  in  his  favor  for  ten  dollars,  without 
costs.  Judgment  was  rendered  for  the  defendants,  and  the  plaintiff 
appealed  to  this  court. 


i 


SEAES  V.  EASTERN  EAILROAD.  403 

J.  L.  Stackpole,  for  the  plaintiff. 

C.  P.  Judd^  for  the  defendants.  If  the  plaintiff  can  maintain  any 
action,  it  must  be  upon  the  count  in  contract.  There  was  no  proof  of 
deceit.  Trj'on  v.  Whitmarsh,  1  Met.  1.  What  then  was  the  nature  of 
the  contract  between  the  parties?  The  ticket  merely  secured  one  pas- 
sage at  any  time  in  1865.  This  was  a  contract  to  carry  the  plaintiff  in 
tlie  usual  way  of  transporting  passengers.  It  was  usual  to  postpone 
this  train,  in  order  to  give  the  public  greater  accommodations.  The 
plaintiff  was  bound  by  this  usage,  whether  he  knew  it  or  not.  If  he 
neglected  to  inquire  as  to  the  custom,  it  is  his  own  fault.  Van  Sant- 
voord  w.  St.  John,  6  Hill,  160;  Cheney  v.  Boston  &  Maine  Railroad, 
11  Met.  121;  Clark  v.  Baker,  lb.  186;  City  Bank  v.  Cutter,  3  Pick. 
414;  Ouimit  r.  Henshaw,  35  Vt.  616,  622.  If  the  advertisement  was 
an  offer  to  carry  passengers  at  9.30,  this  offer  was  withdrawn  on  the 
13th  by  due  notice.  M'Culloch  v.  Eagle  Ins.  Co.,  1  Pick.  278 ;  Boston 
&  Maine  Railroad  v.  Bartlett,  3  Cush.  227.  The  acquiescence  in  the 
usage  of  the  defendants  by  the  public  for  j'ears  shows  that  the  notice 
was  sufficient.  Tlie  plaintiff  should  have  made  further  inquir}'.  Booth 
V.  Barnum,  9  Conn.  290 ;  Taylor  v.  Stibbert,  2  Ves.  Jr.  437 ;  Taylor  v. 
Baker,  5  Price,  306. 

Chapman,  J.  If  this  action  can  be  maintained,  it  must  be  for  the 
breach  of  the  contract  which  the  defendants  made  with  the  plaintiff. 
He  had  purchased  a  package  of  tickets  entitling  him  to  a  passage  in 
their  cars  for  each  ticket  from  Boston  to  Lynn.  This  constituted  a 
contract  between  the  parties.  Cheney  v.  Boston  «fe  Fall  River  Railroad, 
11  Met.  121 ;  Boston  &  Lowell  Railroads.  Proctor,  1  Allen,  267;  Najac 
V.  Boston  &  Lowell  Railroad,  7  Allen,  329.  The  principal  question  in 
this  case  is,  what  are  the  terms  of  the  contract?  The  ticket  does  not 
express  all  of  them.  A  public  advertisement  of  the  times  when  their 
trains  run  enters  into  the  contract,  and  forms  a  part  of  it.  Denton  v. 
Great  Northern  Railway,  5  El.  &  Bl.  860.  It  is  an  offer  which,  when 
once  publicly  made,  becomes  binding,  if  accepted  before  it  is  retracted. 
Boston  &  Maine  Railroad  v.  Bartlett,  3  Cush.  227.  Advertisements 
offering  rewards  are  illustrations  of  this  method  of  making  contracts. 
But  it  would  be  unreasonable  to  hold  that  advertisements  as  to  the  time 
of  running  trains,  when  once  made,  are  irrevocable.  Railroad  corpora- 
tions find  it  necessary  to  var^'  the  time  of  running  their  trains,  and  they 
have  a  right,  under  reasonable  limitations,  to  make  this  variation,  even 
as  against  those  who  have  purchased  tickets.  This  reserved  right 
enters  into  the  contract,  and  forms  a  part  of  it.  The  defendants  had 
such  a  right  in  this  case. 

But  if  the  time  is  varied,  and  the  train  fails  to  go  at  the  appointed 
time,  for  the  mere  convenience  of  the  company  or  a  portion  of  their  ex- 
pected passengers,  a  person  who  presents  himself  at  the  advertised 
hour,  and  demands  a  passage,  is  not  bound  by  the  change  unless  he  has 
had  reasonable  notice  of  it.  The  defendants  acted  upon  this  view  of 
their  duty,  and  gave  certain  notices.     Their  trains  had  been  advertised 


404  SEAKS  V.   EASTERN   RAILROAD. 

to  go  from  Boston  to  L3nn  at  9.30  p.  m.,  and  the  plaintiff  presented 
himself,  with  his  ticket,  at  the  station  to  take  the  train,  but  was  there 
informed  that  it  was  postponed  to  11.15.  Tlie  postponement  had  been 
made  for  the  accommodation  of  passengers  who  desired  to  remain  in 
Boston  to  attend  places  of  amusement.  Certain  notices  of  the  change 
had  been  given,  but  none  of  them  had  reached  the  plaintiff.  They 
were  printed  handbills  posted  up  in  the  cars  and  stations  on  the  day  of 
the  change,  and  also  a  day  or  two  before.  Though  he  rode  in  one  of 
the  morning  cars  from  Lynn  to  Boston,  he  did  not  see  the  notice,  and 
no  legal  presumption  of  notice  to  him  arises  from  the  fact  of  its  being 
posted  up.  Brown  v.  Eastern  Kailroad,  11  Cush.  101  ;  Malone  v. 
Boston  &  Worcester  Railroad,  12  Gray,  388.  The  defendants  pub- 
lished daily  advertisements  of  their  regular  trains  in  the  Boston  Daily 
Advertiser,  Post,  and  Courier,  and  the  plaintiff  had  obtained  his 
information  as  to  the  time  of  running  from  one  of  these  papers.  If 
they  had  published  a  notice  of  the  change  in  these  papers,  we  think  he 
would  have  been  bound  by  it.  For  as  they  had  a  right  to  make  changes, 
he  would  be  bound  to  take  reasonable  pains  to  inform  himself  whether  or 
not  a  change  was  made.  So  if  in  their  advertisement  they  had  reserved 
the  right  to  make  occasional  changes  in  the  time  of  running  a  particu- 
lar train,  he  would  have  been  bound  by  the  reservation.  It  vrould  have 
bound  all  passengers  who  obtained  their  knowledge  of  the  time-tables 
from  either  of  these  sources.  But  it  would  be  contrarj'  to  the  elemen- 
tary law  of  contracts  to  hold  that  persons  who  relied  upon  the  adver- 
tisements in  either  of  those  papers  should  be  bound  bj-  a  reservation  of 
the  offer,  which  was,  without  their  knowledge,  posted  up  in  the  cars 
and  stations.  If  the  defendants  wished  to  free  themselves  from  their 
obligations  to  the  whole  public  to  run  a  train  as  advertised,  they  should 
publish  notice  of  the  change  as  extensivel}-  as  they  published  notice  of 
the  regular  trains.  And  as  to  the  plaintiff,  he  was  not  bound  by  a 
notice  published  in  the  cars  and  stations  which  he  did  not  see.  If  it 
had  been  published  in  the  newspapers  above  mentioned,  where  his  in- 
formation had  in  fact  been  obtained,  and  he  had  neglected  to  look  for 
it,  the  fault  would  have  been  his  own. 

The  evidence  as  to  the  former  usage  of  the  defendants  to  make  occa- 
sional changes  was  immaterial,  because  the  advertisement  was  an  ex- 
press stipulation  which  superseded  all  customs  that  were  inconsistent 
with  it.  An  express  contract  cannot  be  controlled  or  varied  by  usage. 
Ware  v.  Hayward  Rubber  Co.,  3  Allen,  84. 

The  court  are  of  opinion  that  the  defendants,  b}-  failing  to  give  such 
notice  of  the  change  made  b}'  them  in  the  time  of  running  their  train  on 
the  evening  referred  to  as  the  plaintiff  was  entitled  to  receive,  violated 
their  contract  with  him,  and  are  liable  in  this  action. 

Judgment  for  the  plaintiff. 


CHICAGO,  B.   &   Q.   R,    CO.   V.   GUSTIN.  405 


CHICAGO,  B.   &  Q.  R.  CO.  v.  GUSTIN. 
Supreme  Coubt  of  Nebraska,  1892. 

[35  Neb.  86.1] 

Maxwell,  C.  J.  .  .  .  The  plaintiff  below  offered  in  evidence  the 
following  bill  of  lading : 

"  12-14-86-150  M.     Form  71. 

"  Cleveland,  Columbus,   Cincinnati  &  Indianapolis  Rt.  Co. 

"  Edgar  Hill,  Gen'l  Freight  Agent,  Cleveland,  O. 

"A.  S.  White,  Assist.  Gen'l  Freight  Agent,  Cleveland,  O. 


This  bill  of  lading  to  be  presented  by 
consignee  without  alteration  or  erasure. 


Marks,  Consignee,  Etc. 


A.  J.  Gustin,  Lincoln,  Neb. 


This  bill  of  lading  contracts  rates  from 

to  Wann,  111.,  via  ,  at  25c.  per 

lot  and  charges  advanced  at  $ . 


Cleveland,  0.,  9-8,  1888. 

Received  from  the  Eberhard 
Manf.  Co.,  in  apparent  good  order, 
except  as  noted,  the  packages 
described  below  (contents  and 
value  unknown),  marked  and  con- 
signed as  per 

One  box  iron  castings $1  25 

(Printed  across  the  end :  "  C,  C,  C.  &  I.  Ry.  Gen'l  Freight  F.  A., 

Pivi  Sch.  8,  1888.     E.  L.  Campbell,  per B.     This  stamps  receipts 

for  freight  but  not  for  rates.  Rate,  292  pr.  100  lbs.  Wann,  111.,  to 
Lincoln,  Neb.     Guaranteed  by  Western  road.") 

which  the  C,  C,  C.  &  I.  Ry.  agrees  to  transport  with  as  reasonable 
despatch  as  its  general  business  will  permit  to  destination,  if  on  its 
road,  or  otherwise  to  the  place  on  its  road  where  the  same  is  to  be 
delivered  to  any  connecting  carrier,  and  there  deliver  to  the  consignee 
or  to  such  connecting  carrier  upon  the  following  terms  and  conditions, 
which  are  hereb}'  agreed  to  by  the  shipper,  and  by  him  accepted  as 
just  and  reasonable,  and  which  are  for  the  benefit  of  every  one  over 
whose  line  said  goods  are  transported  : 

"  1st.  Neither  this  compan}',  nor  an}'  other  carrier  receiving  said 
property  to  carry  on  its  route  to  destination,  is  bound  to  carry  the 
same  by  any  particular  train,  or  in  time  for  an}'  particular  market,  and 
any  carrier  in  forwarding  said  property  from  the  point  where  it  leaves 
its  line  is  to  be  held  as  a  forwarder  only. 

"  2d.  Neither  this  company  nor  any  such  other  carrier  shall  be 
liable  for  any  loss  of  or  damage  to  said  property  by  dangers  or  acci- 
dent incident  to  railroad  transportation,  or  by  fires  or  floods  while  at 

1  This  case  is  abridged. — Ed. 


406  CHICAGO,  B.   4   Q.   R.   CO.   V.    GUSTIN. 

depots,  stations,  yards,  landings,  warehouses,  or  in  transit.  And  said 
property  is  to  be  carried  at  owner's  risk  of  leakage,  breakage,  chafing, 
loss  in  weight,  or  loss  or  damage  caused  by  changes  in  weather,  or  by 
heat,  frost,  wet,  or  decay,  and  if  any  portion  of  its  route  to  destination 
is  by  water,  of  all  damages  incident  to  navigation. 

"3d.  Responsibilit}'  of  any  carrier  shall  cease  as  soon  as  said 
property  is  read\'  for  deliver}*  to  next  carrier  or  to  consignee,  and  each 
carrier  shall  be  liable  only  for  loss  or  damage  occurring  on  its  own  line, 
and  in  case  of  loss  or  damage  to  such  property*  for  which  an}-  carrier 
shall  be  responsible,  its  value  or  cost  at  time  and  place  of  shipment 
shall  govern  settlement  therefor,  unless  a  value  has  been  agreed  upon 
with  shipper  or  is  determined  by  the  classification  upon  which  the  rate 
is  based,  in  which  case  the  value  so  fixed  by  agreement  or  classification 
shall  govern  ;  and  any  carrier  liable  on  account  of  loss  of  or  damage 
to  such  property  shall  have  the  benefit  of  any  insurance  effected 
thereon  by  or  on  account  of  the  owner  or  consignee  thereof. 

"  4th.  Such  property  shall  be  subject  to  the  necessary  cooperage 
and  bailing  at  owner's  cost ;  and  if  the  owner  or  consignee  is  to  unload 
said  property,  the  delivering  carrier  may  make  a  reasonable  charge 
per  day  for  the  detention  of  any  car  after  the  same  has  been  held 
twent^'-four  hours  for  unloading,  and  may  add  such  charge  to  the  freight 
due  and  hold  said  property  subject  to  a  lien  therefor." 

This  bill  was  objected  to,  for  the  reason  that  there  was  no  evidence 
of  its  authenticity  and  because  the  company  could  not  bind  the  C,  B. 
&  Q.  Railway  Company.  These  objections  were  overruled  and  the  bill 
received. 

It  will  be  observed  that  the  answer  of  the  railroad  company  admits 
receiving  at  Wann,  Illinois,  a  box  of  saddler}-  hardware  weighing  125 
pounds,  admits  in  effect  all  that  is  claimed  in  the  petition,  except  that 
they  do  not  wrongfully-  withhold  the  same,  and  it  alleges  that  the  hard- 
ware is  a  kind  classified  as  No.  2  in  the  schedule.  There  was  no  error 
in  admitting  the  bill  of  lading,  therefore.  In  a  case  of  this  kind, 
where  the  employment  is  not  denied,  it  is  probable  that  the  bill  is  prima 
facie  admissible  in  evidence,  and  a  denial  of  its  genuineness  must  be 
made  by  the  adverse  party  to  require  proof  on  the  point,  but  it  is  un- 
necessar}-  to  determine  that  point.  It  appears  from  the  testimony  that 
goods  are  not  infrequently  labelled  improperly.  Thus,  common  hard- 
ware in  boxes  is  placed  in  the  fourth  class,  while  saddlery  hardware  is 
classified  as  No.  2  ;  that  the  companies  have  inspectors  to  open  the 
packages  and  place  the  goods  in  the  proper  class  ;  that  in  this  instance 
the  inspector  opened  the  box,  which  was  filled  with  Japanned  iron 
rings,  and,  as  Mr.  Gustin  had  been  engaged  in  the  saddlery  business, 
he  at  once  seems  to  have  assumed  that  the  rings  were  designed  for  that 
business,  and  at  once  classified  the  goods  as  No.  2,  the  freight  on 
which  is  eighteen  cents  per  hundred.  It  is  clearly  shown  that  the  rings 
are  a  new  patent  designed  for  a  neck  yoke  for  horses,  and  in  no  way 


PHILLIPS   V.   SOUTHERN  EAILWAY.  407 

connected  with  saddlery  hardware.  Upon  this  point  there  is  practically 
no  dispute,  so  that  the  classification  No.  4  is  correct,  and  the  rates  as 
shown  by  the  schedule  are  less  than  sixty-two  cents  per  hundred,  and 
as  Mr.  Gustin  had  offered  to  pay  that  sum,  he  was  entitled  to  recover. 
There  is  no  error  in  the  record,  and  the  judgment  is 

_.        ,  Affirmed. 

The  other  judges  concur.^ 


PHILLIPS   V.  SOUTHERN  RAILWAY. 
Supreme  Court  of  North  Carolina,  1899. 

[124  N.  C.  123.2J 

Furches,  J.  On  the  loth  of  December,  1896,  the  plaintiff,  intending 
to  take  the  next  train  on  defendant's  road  to  Hot  Springs,  in  Madison 
County,  entered  the  defendant's  waiting-room  at  Asheville  about  eight 
o'clock  at  night,  with  the  intention  of  remaining  there  until  the  depar- 
ture of  the  next  train  on  defendant's  road  for  Hot  Springs,  which  would 
leave  at  1.20  o'clock  of  the  next  morning.  He  was  informed  by  de- 
fendant's agent,  in  charge  of  the  waiting-room,  that  according  to  the 
rules  of  the  company,  she  must  close  the  room  and  that  he  would  have 
to  get  out.     The  plaintiff  protested  against  this,  and  refused  to  leave. 

But  when  the  clerk  of  defendant's  baggage  department  (Graham) 
came  and  told  him  that  he  could  not  staj',  and  made  demonstrations  as 
if  he  would  put  him  out,  he  left ;  that  he  had  no  place  to  go  where  he 
could  be  comfortable  ;  that  the  night  was  cold  ;  that  he  was  thinly  clad 
and  suffered  very  much  from  this  exposure,  and  took  violent  cold  there- 
from, which  ran  into  a  spell  of  sickness  from  which  his  health  has  been 
permanentl}-  injured. 

It  was  in  evidence,  and  not  disputed,  that  the  rules  of  defendant  com- 
pany required  the  waiting-room  to  be  closed  after  the  departure  of 
defendant's  train,  and  to  remain  closed  until  thirt}'  minutes  before  the 
departure  of  its  next  train ;  that,  under  this  rule  of  the  defendant,  it 
was  time  to  close  the  waiting-room  when  the  plaintiff  was  ordered  to 
leave  the  room,  and  he  was  informed  that  it  would  not  be  opened  again 
until  thirty  minutes  before  the  departure  of  defendant's  next  train  at 
1.20  o'clock  of  the  next  morning.  .  .  . 

So  the  only  question  that  remains  is  as  to  whether  the  defendant  had 
the  right  to  establish  the  rule  for  closing  the  waiting-room,  and  was 
the  rule  a  reasonable  one  ?  And  we  are  of  the  opinion  that  the  de- 
fendant had  the  right  to  establish  the  rule  and  that  it  was  a  reason- 
able one.     Webster  v.  Fitchburg  R.  Co.,  161  Mass.  298  ;  34  At.  Rep. 

1  Compare:  Savannah  Co.  v.  Bundick,  94  Ga.  775  ;  Smith  v.  Findley,  34  Eans.  316 ; 
Wellington  v.  R.  R.,  107  Mass.  582 ;  Express  Co.  v.  Koerner,  65  Minn.  540;  Baldwin 
V.  S.  S.  Co.,  11  Hun,  496 ;  New  York  Co.  v.  Gallaher,  79  Tex.  685.  —Ed. 
3  Part  of  the  opinion  is  omitted.  —  Ed. 


408  OHAGE   V.   NORTHERN  PACIFIC   RAILWAY. 

157  ;  1  Elliott  on  Railroads,  sections  199  and  200  ;  4  Elliott  on  Rail- 
roads, section  1579. 

The  case  would  probably  be  different  in  the  case  of  through  passen- 
gers, and  in  the  case  of  delayed  trains ;  but  if  so,  these  would  be 
exceptions  and  not  the  rule. 

Waiting-rooms  are  not  a  part  of  the  ordinary  duties  pertaining  to  the 
rights  of  passengers  and  common  carriers.  But  they  are  established  by 
carriers  as  ancillaries  to  the  business  of  carriers  and  for  the  accommo- 
dation of  passengers,  and  not  as  a  place  of  lodging  and  accommodation 
for  those  who  are  not  passengers.  This  being  so,  it  must  be  that  the 
carrier  should  have  a  reasonable  control  over  the  same,  or  it  could  not 
protect  its  passengers  in  said  rooms.     There  is  error. 

JVew  triai. 


OHAGE  V.  NORTHERN  PACIFIC  RAILWAY. 
Circuit  Court  of  Appeals,  1912. 

[200  Fed.  128.1] 

Hook,  Circuit  Judge. 

[1]  A  railroad  company  may  lawfully  make  reasonable  rules  and 
regulations  for  the  running  of  its  trains  and  the  carriage  of  its  passen- 
gers. Whether  a  particular  regulation  is  reasonable  is  a  question  of 
law,  when  the  circumstances  which  bring  it  about  are  not  in  dispute. 

[2]  When  adequate  facilities  for  local  passenger  traffic  between  two 
localities  is  otherwise  provided,  a  regulation  of  a  railroad  company 
that  another  train  shall  not  engage  therein  is  a  reasonable  one.  These 
principles  are  well  estabUshed.  Kyle  t.  Railway,  105  C.  C.  A.  151, 
182  Fed.  613;  Atchison,  etc.  R.  Co.  t.  Cameron,  14  C.  C.  A.  358,  66 
Fed.  709;  Texas  &  P.  R.  Co.  v.  Ludlam,  6  C.  C.  A.  454,  57  Fed.  481. 
The  importance  and  propriety  of  such  regulations  in  the  conduct  of 
the  railroad  business  is  recognized  in  the  cases  in  which  it  is  held  that, 
when  a  railroad  company  has  provided  adequate  service  for  localities 
within  a  state,  a  state  law  requiring  it  to  add  to  such  service  a  through 
or. limited  train  engaged  in  interstate  commerce,  may  be  void.    The 

*  An  extract  only  is  printed.  —  Ed. 


OHAGE  V.  NORTHERN  PACIFIC  RAILWAY.  409 

law  is  held  invalid  when  it  operates  as  a  burden  on  or  to  the  detriment 
of  such  commerce.  Herndon  v.  Railway,  218  U.  S.  135,  30  Sup.  Ct. 
633,  54  L.  Ed.  970;  Atlantic  Coast  Line  v.  Wharton,  207  U.  S.  328,  28 
Sup.  Ct.  121,  52  L.  Ed.  230;  Mississippi  Railroad  Commission  v.  Rail- 
road, 203  U.  S.  335,  27  Sup.  Ct.  90,  51  L.  Ed.  209. 

[3]  A  regulation  may  permit  the  discharge  of  passengers  from  a 
train  at  a  locahty,  and  yet  there  may  be  good  reasons  growing  out  of 
the  character  of  the  patronage,  as  is  the  case  here,  why  others  should 
not  be  taken  on;  and,  to  avoid  discrimination,  a  regulation  should  be 
general  within  the  scope  of  its  operation,  and  not  depend  upon  the 
accident  of  the  particular  occasion. 

[4]  Folders  are  voluntarily  issued  by  railroad  companies  for  the  in- 
formation of  the  public,  and  not  by  reason  of  any  statutory  require- 
ment or  public  duty.  It  would  be  impracticable  to  recall  and  destroy 
an  entire  issue  when  changes  are  made  in  train  service,  and  from 
abundance  of  caution  it  is  customary,  though  perhaps  not  the  invari- 
able practice,  for  them  to  insert  a  statement  in  their  folders  that  the 
right  is  reserved  to  vary  therefrom  without  notice.  Such  a  statement 
appeared  in  the  folder  the  plaintiff  consulted.  Railroad  companies 
are  not  held  to  adhere  to  the  schedules  appearing  in  their  folders 
merely  because  they  remain  extant  and  in  circulation.  They  must 
and  do  frequently  change  the  service  of  their  trains  to  adjust  their 
business  to  conditions  as  they  arise,  and  it  is  common  knowledge  that 
information  thereof  can  be  obtained  of  ticket  agents  and  in  large  cities 
at  information  bureaus  established  for  the  purpose.  The  plaintiff 
himself,  though  he  had  procured  a  folder,  inquired  of  the  information 
bureau  in  St.  Paul  when  a  train  left  after  2.15  in  the  afternoon  for 
White  Bear;  but  he  made  no -inquiry  when  he  could  return,  or  whether 
he  could  return  on  the  Limited. 

[5]  It  is  contended  that  the  reply  of  the  agent  at  White  Bear  that 
the  Limited  was  on  time,  in  response  to  his  question,  was  a  "direct 
intimation"  of  his  right  to  ride  on  it.  We  think  the  incident  had  no 
necessary  pertinence  to  the  right  asserted.  Such  questions  are  asked 
from  a  variety  of  motives,  and  it  was  not  for  the  agent  to  ask  him  in 
return  why  he  wanted  to  know.  There  was  no  apparent  implication 
that  the  plaintiff  expected  to  take  the  train  for  St.  Paul. 

[6]  But,  were  it  otherwise,  the  plaintiff's  situation  was  not  caused 
or  changed  by  what  the  agent  said,  even  if  it  be  assimied  he  could 
bind  the  company  under  the  circumstances.  There  was  no  error  in 
the  ruUngs  of  the  court  upon  the  evidence  pointed  out  in  the  assign- 
ments. 

The  judgment  is  affirmed. 


410  VIRGINIA   RAILWAY   &   POWER  CO.   T.   o'fLAHERTY. 

VIRGINIA  RAILWAY  &  POWER  CO.  v.  O'FLAHERTY. 
Supreme  Court  of  Appeals  of  Virginia,  1916. 

[118  Va.  749.1] 

Whittle,  J.,  delivered  the  opinion  of  the  court. 

The  court  correctly  held,  "  that  the  rule  of  the  defendant  requiring 
a  passenger  to  deposit  his  fare  (or  ticket)  in  the  box  is  a  reasonable 
regulation,  and  one  with  which  the  passenger  should  comply.  The 
burden  imposed  upon  the  passenger  of  stepping  back  to  the  platform 
and  personally  putting  his  fare  in  the  box,  when  he  has  taken  his 
seat  without  doing  so,  is  very  slight,  and  taken  in  connection  with  the 
purposes  of  a  pay-as-you-enter  car,  and  with  the  necessity  of  rendering 
street  car  traffic  in  crowded  cities  as  efficient  as  practicable  for  the 
general  public,  is  not  an  unreasonable  requirement.  .  .  .  The  rule  in 
question  here  was  a  public  regulation  of  the  company  of  which  the 
plaintiff  had  knowledge.  By  the  refusal  of  the  plaintiff  to  pay  his  fare 
in  the  manner  required  by  this  regulation,  he  placed  himself  in  default. 
Upon  his  refusal  so  to  pay,  or  to  leave  the  car,  the  company  by  its 
agents,  the  conductor  and  the  motorman,  acquired  the  right  to  eject 
him  from  the  car." 

The  authorities  fully  sustain  the  above  statement  of  the  law. 

"  It  is  well-settled  law  that  a  carrier  has  a  right  to  make  reasonable 
rules  and  regulations  for  the  conduct  of  its  affairs,  and  that  they  are 
binding  upon  the  passengers  and  the  pubUc  dealing  with  the  carrier 
when  brought  to  their  notice.  .  .  .  The  reasonableness  of  the  rules 
and  regulations  of  a  railroad  company  is  a  question  of  law  addressed 
to  the  court."  N.  &  W.  Ry.  Co.  v.  Wyso^,  82  Va.  250,  at  pages  260-1; 
Va.  &  S.  W.  Ry.  v.  Hill,  105  Va.  738,  54  S.  E.  872,  6  L.  R.  A.  (N.  S.) 
899;  N.  &  W.  Ry.  Co.  v.  Brame,  109  Va.  422,  430,  63  S.  E.  1018. 

"  It  is  within  the  power  of  the  company  to  make  and  enforce  a  rea- 
sonable rule  as  to  the  time,  place  and  manner  of  payment  of  fares." 
Knoxville  Traction  Co.  v.  W^erson,  117  Tenn.  482,  99  S.  W.  992, 
9  L.  R.  A.  (N.  S.)  579,  10  Ann.  Cas.  641,  NeUis  on  Street  Railways 
(2d  Ed.),  §  264. 

There  are  numerous  cases  which  uphold  the  reasonableness  of  rules 
similar  to  the  one  xmder  consideration  and  the  duty  of  the  passenger 
to  comply  with  them,  and,  upon  refusal,  the  power  of  the  conductor 
to  eject  him.  Martin  v.  Rhode  Island  Co.,  32  R.  I.  162,  78  Atl.  548, 
32  L.  R.  A.  (N.  S.)  695,  Ann.  Cas.,  1912,  C,  p.  1283;  Nye  v.  Maryville, 
&c.  Co.,  97  Cal.  461,  32  Pac.  530;  Kitchen  v.  Saginaw  (C.  C),  cited 
in  117  Mich.  254,  75  N.  W.  466,  41  L.  R.  A.  817. 

*  An  extract  only  is  printed.  —  Ed. 


FUNDERBURG  V.   AUGUSTA  AND  AIKEN   RY.   COMPANY.  411 


CHAPTER  VII. 

DETERMINATION   OF   REASONABLE   RATES. 


FUNDERBURG  v.  AUGUSTA  &  AIKEN  RAILWAY 
COMPANY. 

Supreme  Court  op  South  Carolina,  1908. 

[61  S.  E.  1075.1] 

The  circuit  court  has  found  in  this  case  that  "  a  tender  of  $5  to  pay 
a  5  cent  fare  would  be  disproportionate  to  the  amount  of  the  fare,  and 
that,  under  a  proper  rule  on  the  part  of  the  carrier  upon  the  subject,  in 
existence  and  actually  enforced,  the  carrier  could  not  be  forced  to  fur- 
nish change  for  so  large  an  amount."  He,  however,  held  that  such  rule 
had  not  been  brought  to  the  notice  of  the  travelling  public,  and  had 
been  habituall}'  disregarded  and  waived.  This  shows  that  the  circuit 
court  would  have  regarded  as  unreasonable  the  tender  to  the  defendant 
railroad  of  $5  for  a  5  cent  fare,  had  it  been  admitted  that  defendant 
had  promulgated  a  rule  to  that  effect,  and  had  not  waived  it.  There  is 
therefore  no  finding  below  that  the  rule  is  unreasonable,  and  indeed 
there  is  no  fact  appearing  in  the  record  to  suggest  a  doubt  of  its  reason- 
ableness. The  difflcult3'  of  making  change  in  the  cotton  picking  season 
in  South  Carolina  is  a  well-known  fact,  and  the  court  takes  notice  of 
the  territory  and  the  thick  population  and  the  numerous  mill  towns 
along  the  route  between  Augusta  and  Aiken,  which  renders  it  probable 
that  numerous  fares  will  be  collected  on  the  defendant  electric  railway 
between  these  points  on  a  single  trip.  To  require  defendant  to  furnish 
change  for  every  bill  presented  would  be  unreasonable. 

The  California  and  New  York  courts  agree  upon  the  proposition 
"  that  a  passenger  upon  a  street  railway  is  not  bound  to  tender  the 
exact  fare,  but  must  tender  a  reasonable  sum,  and  the  carrier  must  ac- 
cept such  tender,  and  furnish  change  to  a  reasonable  amount,"  but  in 
California  the  court,  in  view  of  local  conditions,  held  that  a  tender  of  a 
gold  coin  of  $5,  the  lowest  gold  coin  in  use  in  that  section,  for  a  5  cent 
fare  was  reasonable  (Barrett  v.  Market  St.  Ry.  Co.,  81  Cal.  295,  22 
Pac.  859,  6  L.  R.  A.  336,  15  Am.  St.  Rep.  62),  whereas  in  New  York 
it  is  held  that  conductors  cannot  be  required  to  furnish  change  for  a  $5 
bill  in  payment  of  street  car  fare,  and  that  a  rule  of  the  company  re- 
quiring change  to  be  made  to  the  amount  of  $2  is  reasonable  (Barker 
V.  R.  R.  Co.,  151  N.  Y.  237,  45  N.  E.  550,  35  L.  R.  A.  489,  56  Am.  St. 

1  An  extract  from  the  majority  opinion  is  printed.  —  Ed. 


412         FUNDEUBURG  V.   AUGUSTA   AND   AIKEN   RY.   COMPANY. 

Rep.  626).  Conceding  that  the  conductor  had  more  than  $5  in  change 
at  the  time  plaintiff  tendered  his  bill,  that  did  not  make  it  the  con- 
ductor's duty  to  so  deprive  himself  of  change  as  to  be  unable  to  meet 
the  reasonable  requirements  of  the  trip.  Suppose  he  had  $6.80  in  change 
at  the  time.  If  he  had  given  plaintiff  $4.95  of  that  sum  he  would 
thereb}-  have  rendered  himself  unable  to  give  change  to  the  next  pas- 
senger presenting  a  $2  bill.  If  he  had  failed  to  make  change  for  such 
next  passenger  in  breach  of  the  rules  of  the  company,  would  he  not 
have  violated  the  right  of  such  passenger?  Could  not  such  passenger 
say:  "You  must  change  my  $2  bill,  because  your  rules  require  it." 
Can  it  possibly  be  a  wilful  breach  of  duty  to  the  first  passenger  to  de- 
cline to  do  that  which  would  reasonably'  result  in  a  breach  of  duty  to 
the  second  passenger?  It  is  true  that  a  conductor  on  a  number  of  oc- 
casions made  change  for  $5,  but  this  was  when  he  had  "  plent}'  of 
change,"  and  this  was  not  in  disregard  of  the  rules,  but  in  strict  con- 
formit}-  thereto.  "  Plenty  of  change  "  does  not  mean  plenty  for  a  sin- 
gle transaction,  but  plenty  for  the  reasonable  requirements  of  the  trip. 
The  conductor  must  necessarily  be  allowed  some  discretion  in  deciding 
whether  he  has  such  an  amount  in  change  for  the  probable  demands  of 
the  trip  as  would  allow  him  to  change  over  $2  in  a  particular  case.  We 
fail  to  find  a  scintilla  of  evidence  in  the  record  tending  to  show  that  the 
rule  of  the  company  had  been  habitually  disregarded  and  waived.  In- 
deed not  one  of  the  witnesses  who  testified  as  to  seeing  the  conductor 
change  a  $5  bill  previously  to  the  occasion  in  question  say  that  it  was 
done  after  the  4th  of  November  1907,  when  the  rule  was  adopted.  The 
rule  had  been  recentl}'  adopted  before  the  occasion  in  question,  and 
possibl}'  it  was  negligence  to  fail  to  give  some  public  notice  of  it.  But, 
as  declared  in  the  New  York  case  above  cited,  it  is  not  the  dut}'  of  the 
carrier  to  bring  home  to  each  passenger  a  personal  knowledge  of  the 
existence  of  a  reasonable  rule.  When  notice  of  the  i*ule  was  brought 
home  to  the  plaintiff  it  was  his  duty  to  make  an  effort  to  compl}',  and 
yet  it  appears  by  his  own  testimony  that  he  knew  some  of  the  people 
on  the  car,  but  did  not  try  to  borrow  a  nickel,  and  there  is  not  a  parti- 
cle of  evidence  that  he  made  the  slightest  effort  to  have  his  bill  changed 
by  his  fellow  passengers. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  case  remanded 
for  a  new  trial. 


BARRETT   V.   MARKET   STREET   RAILWAY.  4)3 


BARRETT  v.  MARKET  STREET  RAILWAY. 

Supreme  Court  of  California,   1889. 

[81  Cal.  296.1] 

Action  for  damages  for  forcible  ejection.  Plaintiff  tendered  con- 
ductor of  the  defendant  a  five  dollar  gold  piece  for  a  five  cent  fare. 
The  conductor  refused  it  and  thereupon  ejected  the  plaintiff  from  the 
car. 

Paterson,  J.  .  .  .  The  question  on  the  merits  to  which  counsel  have 
mainly  directed  their  arguments  is,  whether  the  passenger  was  bound 
to  tender  the  exact  fare.  It  is  argued  for  the  appellant  that  the  rule  ia 
relation  to  the  performance  of  contracts  applies,  and  that  the  exact 
sum  must  be  tendered.  But  we  do  not  think  so.  The  fare  can  be 
demanded  in  advance  as  well  as  at  a  subsequent  time.  Civ.  Code, 
sec.  2187.  And  so  far  as  this  question  is  concerned,  we  see  no  dif- 
ference in  principle  where  the  fare  is  demanded  in  advance  and  where 
it  is  demanded  subsequently.  If  it  be  demanded  in  advance,  there  is 
no  contract.  The  carrier  simply  refuses  to  make  a  contract.  Conse- 
quently the  rule  in  relation  to  the  performance  of  contracts,  whatever 
it  be,  has  no  necessary  application.  The  obligation  of  the  carrier  in 
such  case  would  be  that  which  the  law  imposes  on  every  common 
carrier,  viz.,  that  he  must,  "if  able  to  do  so,  accept  and  carr\'  what- 
ever is  offered  to  him,  at  a  reasonable  time  and  place,  of  a  kind  that 
he  undertakes  or  is  accustomed  to  carr}-."  Civ.  Code,  sec.  2169. 
This  duty,  like  every  other  which  the  law  imposes,  must  have  a  reason- 
able performance.  And  we  do  not  think  it  would  in  all  cases  be 
reasonable  for  the  carrier  to  demand  the  exact  fare  as  a  condition  of 
carriage.  Suppose  that,  on  entering  a  street-car,  a  person  should 
tender  the  sum  of  ten  cents.  Would  it  be  reasonable  for  the  carrier  to 
refuse  it  ?  Prior  to  the  act  of  1878,  the  usual  fare  was  six  and  a 
quarter  cents.  In  such  a  case  it  would  be  unreasonable  for  the  carrier 
to  demand  the  exact  fare ;  for  there  is  no  coin  in  the  country  which 
would  enable  the  passenger  to  answer  such  a  demand.  It  would  be 
impossible  for  the  passenger  to  furnish  such  a  sum.  Consequently,  to 
allow  the  carrier  to  maintain  such  a  demand  would  be  to  allow  him  to 
refuse  to  perform  the  duty  which  the  law  imposes  upon  him.  The  fare 
which  he  is  now  allowed  to  charge  is  no  longer  the  sum  mentioned. 
The  act  of  1878  forbids  him  to  "  charge  or  collect  a  higher  rate  than 
five  cents."  But  there  is  nothing  to  prevent  a  lower  rate  from  being 
charged.  The  carrier  might  fix  it  at  four  and  a  quarter  cents.  And 
in  such  a  case  it  would  be  equally  impossible  for  the  passenger  to 
compl}*  with  such  a  demand  as  in  the  case  above  put.  Consequently, 
it  will  not  do  to  lay  down  the  rule  that  the  passenger  is  obliged  to 
tender  the  exact  fare. 

1  The  case  is  abridged.  —  Ed. 


414  WILLIAMS   V.   MUTUAL   GAS   CO. 

But  it  does  not  follow  that  the  passenger  may  tender  any  sum,  how- 
ever large.  If  he  should  tender  a  hundred-dollar  bill,  for  example,  it 
would  be  clear  that  the  carrier  would  not  be  bound  to  furnish  change. 
The  true  rule  must  be,  not  that  the  passenger  must  tender  the  exact 
fare,  but  that  he  must  tender  a  reasonable  sum,  and  that  the  carrier 
must  accept  such  tender,  and  must  furnish  change  to  a  reasonable 
amount.  The  obligation  to  furnish  a  reasonable  amount  of  change 
must  be  considered  as  one  which  the  law  imposes  from  the  nature  of 
the  business.  Judgment  for  plaintijf',^ 


WILLIAMS  V.  MUTUAL   GAS  CO. 
Supreme  Court  op  Michigan,  1884. 

[52  Mich.  499.] 

Error  to  the  Superior  Court  of  Detroit.  (Chipman,  J.)  Jan.  22  — 
Jan.  29. 

Case.     Plaintiff  brings  error.     Affirmed. 

Sherwood,  J.  The  plaintiff,  in  the  month  of  November,  1879,  re- 
sided in  Detroit  and  was  in  possession  of  and  keeping  the  hotel  known 
as  the  Biddle  House,  containing  a  very  large  number  of  rooms,  all  of 
which  were  furnished  with  gas-pipes  and  fixtures  for  the  purpose  of 
lighting  the  same,  and  which  had  been  so  lighted  for  man}*  years. 

The  defendant  corporation  was  duly  organized  under  the  Act  of  the 
Legislature  for  the  formation  of  gaslight  companies,  approved  Febru- 
ary 12,  1855,  and  located  in  Detroit.  On  the  15th  day  of  November 
aforesaid  the  defendant,  in  pursuance  of  said  Act  of  the  Legislature  and 
tlie  charter  and  b^-laws  of  Detroit,  was  and  had  been  for  some  time 
previous  carrying  on  the  business  for  which  it  was  organized,  suppl}- 
ing  the  citizens  at  hotels  and  private  dwellings  with  gas  in  such  quan- 
tities as  desired,  and  among  others  had  connected  its  pipes  with  those 
of  the  Biddle  House,  and  for  some  time  previous  had  been  supplying 
it  with  gas  as  its  proprietors  desired.  On  that  day  the  defendant  re- 
fused to  supply  the  Biddle  House  longer  unless  its  proprietor,  the  plain- 
tiff, would  keep  on  deposit  with  the  company  $100.  It  was  receiving 
at  that  time  about  $60  worth  of  gas  per  week,  and  its  requirements 
were  increasing. 

The  plaintiff  regarding  the  demand  as  unreasonable,  declined  to 
make  the  required  deposit,  and  tendered  the  defendant  S75  and  de- 
manded that  the  company  should  furnish  him  gas  at  the  Biddle  House 
to  that  amount.  This  the  defendant  refused  to  do  and  cut  off  the  ser- 
vice at  the  hotel. 

The  plaintiff  claims  that  it  was  the  defendant's  duty  to  furnish  him 
with  the  gas  required,  and  upon  the  terms  demanded;  that  he  has  suf- 

»  Compare ;  Fulton  v.  Grand  TruLk  Co.,  17  U.  C,  Q.  B.  428.  —  Ed. 


WILLIAMS   V.   MUTUAL   GAS  CO.  415 

fered  great  injury  to  his  business  in  consequence  of  the  defendant's 
neglect  so  to  do.  And  he  brings  his  suit  in  this  case  to  recover  his 
damages.  A  trial  was  had  in  the  Superior  Court  of  Detroit,  and  the 
judge  directed  a  verdict  for  the  defendant.  The  plaintiff  brings  error 
and  the  case  is  now  before  us  on  a  bill  of  exceptions  containing  all  the 
testimony. 

The  questions  presented  and  argued  before  the  judge  of  the  Superior 
Court  b}-  counsel  for  defendant  were  —  First,  the  plaintiff  could  not 
recover  for  the  reason  the  defendant  was  under  no  legal  duty  or  obli- 
gation to  suppl}'  any  citizen  of  Detroit  with  gas  ;  and,  second,  if  such 
duty  was  imposed  upon  the  defendant,  the  conditions  upon  which  the 
defendant  proposed  and  offered  to  perform  it  were  reasonable.  The 
court  disagreed  with  the  defendant's  counsel  in  the  first  position,  but 
sustained  them  in  the  second.  I  agree  with  the  judge  of  the  Superior 
Court  that  it  is  the  duty  of  the  defendant,  upon  reasonable  conditions, 
to  supply  the  citizens  of  Detroit  who  have  their  residences  and  places 
of  business  east  of  the  centre  of  Woodward  Avenue,  with  gas  wher- 
ever the  defendant  has  connected  its  mains  and  service  pipes  with  the 
pipes  and  fixtures  used  at  such  residences  and  places  of  business  and 
the  owners  or  occupants  shall  desire  the  same. 

The  defendant  is  a  corporation  in  the  enjoyment  of  certain  rights 
and  privileges,  under  the  statutes  of  the  State  and  charter  and  by- 
laws of  the  cit}',  and  derived  therefrom.  These  rights  and  privileges 
were  granted  that  corresponding  duties  and  benefits  might  inure  to 
the  citizens  when  the  rights  and  privileges  conferred  should  be  exer- 
cised. The  benefits  are  the  compensation  for  the  rights  conferred 
and  privileges  granted,  and  are  more  in  the  nature  of  convenience 
than  necessit}',  and  the  duty  of  this  corporation  imposed  cannot  there- 
fore be  well  likened  to  that  of  the  innkeeper  or  common  carrier,  but 
more  nearly  approximates  that  of  the  telegraph,  telephone,  or  mill- 
owner.  The  company,  however,  in  the  discharge  of  its  duty  may  gov- 
ern its  action  by  reasonable  rules  and  regulations,  and  when  it  has 
done  so  all  persons  dealing  with  it,  as  well  as  the  company  itself,  must 
yield  obedience  thereto.  The  statute  under  which  the  defendant  com- 
pany is  organized  provides  it  may  ordain  and  enact  by-laws  for  that 
purpose;  but  the  record  discloses  no  such  action  ta^en  on  the  part  of 
the  defendant;  neither  does  it  show  any  general  action  or  custom  of 
the  company  in  making  terms  with,  or  for  supplying  gas  to,  proprietors 
of  hotels  or  other  persons  except  as  required  in  this  case. 

The  president  of  the  defendant  compan}'  was  sworn  and  examined, 
and  testified  that  the  defendant  made  weekly  or  monthly  collections 
for  gas  furnished.  He  further  said  that  the  defendant  refused  to  let 
the  plaintiff  have  a  supply  for  the  Biddle  House  unless  he  would  first 
sign  a  contract  with  the  company  therefor,  and  in  addition  thereto 
keep  on  deposit  with  the  company  the  sum  of  one  hundred  dollars 
so  long  as  it  furnished  him  with  a  supply ;  that  the  plaintiflT  tendered 
the  defendant  $75,  and  demanded  that  the  company  should  supply  the 


416  WILLIAMS   V.   MUTUAL   GAS  CO. 

hoase  and  offered  to  give  good  personal  securit}'  for  payment  and  per- 
formance on  his  part  to  the  extent  it  should  be  furnished  or  the  com- 
pan}'  require ;  and  that  the  company  refuse  to  accept  the  terras  proposed 
by  plaintiff,  or  furnish  his  house  with  gas  as  required. 

This  corporation  is  authorized  and  permitted  to  do  business  in  De- 
troit only  upon  the  ground  of  public  convenience,  and  that  benefits  may 
accrue  to  its  citizens. 

It  is  true  that  neither  by  the  charter  of  the  compan}',  its  articles  of 
association,  or  the  by-laws  of  the  city  authorizing  its  existence  there, 
has  it  the  exclusive  right  to  manufacture  and  sell  gas.  It  is,  how- 
ever, within  the  experience  of  us  all,  and  I  ma}-  say,  I  think,  with  great 
propriet}',  within  the  judicial  knowledge  of  the  courts,  that  the  manu- 
facture and  supply  of  inflamable  gas  for  the  purpose  of  lighting  cities, 
villages,  stores,  hotels,  and  dwellings,  is  not  a  domestic  or  family  manu- 
facture. It  is  carried  on  almost  exclusively  b}-  public  or  associated 
capital,  and  to  make  it  a  paying  industr}-  requires  the  exercise  and 
enjoyment  of  certain  rights  and  franchises  only  to  be  acquired  from 
municipal  or  State  authority.  Associations  of  this  kind,  as  has  been 
well  said,  "  are  not  like  trading  and  manufacturing  corporations,  the 
purview  of  whose  operations  is  as  extensive  as  commerce  itself,  and 
whose  productions  may  be  transported  from  market  to  market  through- 
out the  world."  It  is  not  a  trading  corporation,  its  product  is  de- 
signed for  the  citizen,  and  the  extent  to  which  it  is  used  depends  upon 
home  consumption  in  the  immediate  neighborhood  and  community  in 
which  the  manufacture  is  wrought.  It  is  in  the  strictest  sense  a  local 
commodity,  and  not  commercial.  It  can  onl}-  be  used  by  consuming 
it,  and  hence  can  have  no  place  with  articles  of  trade.  The  success  of 
the  company  greatl}-  depends  upon  the  necessit}-  of  the  citizens  in  the 
vicinity  of  its  location,  and  its  operations  may  seriously  affect  the  pub- 
lic policy  and  individual  convenience  of  the  community'.  The  nature 
of  the  article  made,  the  objects  of  the  compan}',  its  relations  to  the 
community,  and  the  rights  and  privileges  it  must  necessarily  exercise, 
give  the  company  a  public  character,  and,  to  a  certain  extent,  a  raonop- 
ol}'  which  can  never  be  tolerated,  only  upon  the  ground  of  some  cor- 
responding duty  to  meet  the  public  want.  Such  dut}'  rests  upon  this 
defendant,  and  I  think  it  requires  the  company  to  furnish  to  this  plain- 
tiff, at  the  Biddle  House,  the  supply  of  gas  demanded,  under  reason- 
able rules  and  regulations,  but  among  all  such  as  might  be  mentioned, 
it  is  with  the  defendant  to  adopt  and  rel}'  upon  such  as  it  may  select. 
This  is  its  privilege. 

The  duty  of  the  company  towards  the  citizen,  and  that  of  the  citizen 
towards  the  compan}-,  is  somewhat  reciprocal,  and  any  rule  or  regula- 
tion or  course  of  dealing  between  the  parties  which  does  not  secure  the 
just  rights  of  both  ought  not  to  be  adopted,  and  cannot  receive  the 
sanction  of  the  courts. 

When  the  defendant  company  made  the  connection  of  its  service 
pipes  and  mains  with  the  pipes  and  fixtures  of  the  Biddle  House,  it  im- 


WHEELER   V.    NORTHERN   COLORADO   IRRIGATION   CO.  417 

posed  upon  itself  the  duty  to  supply  the  house  and  premises  upon 
reasonable  terms  and  conditions  with  such  amount  of  gas  as  the  owner 
or  proprietor  might  require  for  its  use,  and  pay  for,  so  long  as  the  corn- 
pan}'  should  exist  and  do  business. 

If  the  defendant,  as  one  of  such  conditions,  required  the  plaintiff  to 
give  sufficient  security  that  he  would  make  such  paj'ment  and  perform 
such  conditions,  before  making  such  service,  I  thing  it  would  have 
been  reasonable,  but  in  the  place  of  such  security  the  defendant  de- 
manded a  deposit  of  money  with  the  company,  as  had  been  its  custom. 
This  the  company  had  a  right  to  do.  The  condition  was  a  reasonable 
one.  The  requirement  of  a  special  contract  between  the  parties,  in 
addition  to  the  deposit  of  mone}',  may  not  be  unreasonable,  still  it  was 
quite  unnecessary.  The  law  implies  all  the  contract  needed,  and  courts 
will  enforce  it  in  all  cases  to  the  extent  necessary  to  secure  the  rights 
of  the  parties. 

I  think  the  judgment  of  the  Superior  Court  should  be  affirmed. 

The  other  justices  concurred. 


WHEELER  V.  NORTHERN   COLORADO   IRRIGATION  CO. 

Supreme  Court  of  Colorado,   1887. 

[10  Col.  582.1] 

Helm,  J.  .  .  .  The  pleadings  in  the  case  at  bar  show  that  respond- 
ent is  a  carrier  and  distributer  of  water  for  irrigation  and  other  pur- 
poses. That  its  canal,  two  years  ago,  was  upwards  of  sixty  miles  in 
length  and  capable  of  supplying  water  to  irrigate  a  large  area  of  land. 
That  relator  is  one  of  the  land-owners  and  consumers  under  the  canal, 
and  can  obtain  water  from  no  other  source  ;  also,  that  respondent  has, 
undisposed,  a  sufficient  quantity  to  supplj'  his  wants.  That  he  ten- 
dered the  sum  of  $1.50  per  acre,  the  annual  rental  fixed  by  respondent, 
and  demanded  the  use  of  water  for  the  current  season,  but  declined 
to  pay  the  further  sum  of  $10  per  acre  also  demanded,  and  to  sign  a 
certain  contract  presented  to  him  for  execution.  That  respondent 
refused,  and  still  refuses,  to  grant  relator's  request,  except  upon  com- 
pliance with  these  conditions.  The  remaining  essential  facts  will 
sufficiently  appear  in  connection  with  the  specific  questions  of  law 
presented,  as  they  are  in  their  proper  order  discussed. 

Were  the  constitution  and  statutes  absolutely  silent  as  to  the  amount 
of  the  charge  for  transportation,  and  the  time  and  manner  of  its  col- 
lection, there  would  be  strong  legal  ground  for  the  position  that  the 
demand  in  these  respects  must  be  reasonable.  The  carrier  voluntarily 
engages  in  the  enterprise ;  it  has,  in  most  instances,  from  the  nature 

1  This  case  is  abridged.  —  Ed. 
27 


418     WHEELER  V.   NORTHERN  COLORADO  IRRIGATION  CO. 

of  things,  a  monopoly  of  the  business  along  the  line  of  its  canal ;  its 
vocation,  together  with  the  use  of  its  propert}-,  are  closely  allied  to 
the  public  interest ;  its  conduct  in  connection  therewith  materially 
affects  the  community  at  large ;  it  is,  I  think,  charged  with  what  the 
decisions  term  a  public  duty  or  trust.  In  the  absence  of  legislation 
on  the  subject,  it  would,  for  these  reasons,  be  held,  at  common  law,  to 
have  submitted  itself  to  a  reasonable  judicial  control,  invoked  and 
exercised  for  the  common  good,  in  the  matter  of  regulations  and 
charges.  And  an  attempt  to  use  its  monopoly*  for  the  purpose  of  co- 
ercing compliance  with  unreasonable  and  exorbitant  demands  would 
lay  the  foundation  for  judicial  interference.  Munn  v.  People,  4  Otto, 
113,  and  cases  cited  ;  Price  v.  Riverside  L.  L.  C,  56  Cal.  431 ;  C.  &  N. 
W.  R.  R.  Co.  0.  People,  56  111.  365  ;  Vincent  v.  Chicago  &  Alton  R.  R. 
Co.,  49  111.  33. 

But  the  constitution  is  not  silent  in  the  particular  mentioned.  It 
evinces,  beyond  question,  a  purpose  to  subject  this,  as  other  branches 
of  the  business,  to  a  certain  degree  of  public  control.  As  we  have 
seen,  it  provides  for  a  tribunal  to  which  the  maximum  amount  ot 
water  rates  may  be  referred,  in  case  of  dispute  between  the  carrier 
and  consumer.  And  I  think  that,  by  fair  implication,  it  forbids  the 
carrier's  enforcement  of  unreasonable  and  oppressive  demands  in  re- 
lation to  the  time  and  manner  of  collecting  these  rates.  An}'  other 
view  would  accuse  the  convention  of  but  partiall}*  doing  its  work.  For 
the  fixing  of  maximum  rates  would  be  protection,  gross!}'  inadequate, 
if  either  of  the  parties  might  dictate,  absolutely,  the  time  and  condi- 
tions of  payment.  The  primary  objects  were  to  encourage  and  pro- 
tect the  beneficial  use  of  water ;  and  while  recognizing  the  carrier's 
right  to  reasonable  compensation  for  its  carriage,  collectible  in  a  rea- 
sonable manner,  the  constitution  also  unequivocallv  asserts  the  con- 
sumer's right  to  its  use,  upon  pa3ment  of  such  compensation. 

Any  unreasonable  regulations  or  demands  that  operate  to  withhold 
or  prevent  the  exercise  of  this  constitutional  right  bj-  the  consumer 
must  be  held  illegal,  even  though  there  be  no  express  legislative  dec- 
laration on  the  subject. 

The  contract  which  respondent  required  relator  to  sign  and  agree 
to  comply  with,  as  a  condition  precedent  to  the  granting  of  his  request, 
contains  the  following  among  other  conditions :  That  he  buy  in  ad- 
vance "the  right  to  receive  and  use  water"  from  its  canal,  paying 
therefor  the  sum  of  $10  per  acre;  also  that  he  further  pay  "annuall}- 
in  advance,  on  or  before  the  1st  day  in  May  of  each  j'car,  such  reason- 
able rental  per  annum,  not  less  than  $1.50  nor  more  than  S4  per  acre, 
as  may  be  established  from  year  to  yeax  "  by  respondent.  If  we  hold 
respondent  to  the  literal  term  used  in  this  contract  we  must  declare 
the  $10  exaction  illegal.  Respondent  cannot  collect  of  relator  the 
sum  of  $10,  or  any  other  sum,  for  the  privilege  of  exercising  his  con- 
stitutional right  to  use  water. 

But  counsel  contended  in  argument  that  the  foregoing  expressions, 


WHEELER  V.   NORTHERN  COLORADO  IRRIGATION  CO.     419 

quoted  from  respondent's  contract,  are  not  intended  to  require  the 
j)ayment  of  $10  per  acre  for  a  right  to  use  water.  They  say  this  $10 
is  merely  a  portion  of  the  annual  "rental"  exacted  of  consumers  in 
advance  for  the  remaining  years  of  respondent's  corporate  existence  ; 
that  instead  of  requiring,  say,  $2.50  per  acre  for  each  irrigating  sea- 
son in  turn,  respondent  has  seen  fit  to  divide  this  sum  into  two  parts, 
collecting  $1.50  annually,  and  the  residue  of  $1  each  for  the  remaining 
ten  years  of  its  corporate  life,  as  one  entire  sura  in  advance. 

This  construction  of  the  contract  may,  under  all  the  circumstances, 
seem  plausible,  though  I  doubt  if  the  courts  could  accept  it ;  but  if 
accepted  the  difficulty  under  which  respondent  labors  would  not  be 
obviated. 

If  the  carrier  may  collect  a  part  of  its  annual  transportation  charge 
in  advance  for  the  remaining  years  of  its  corporate  life,  it  may  collect 
all.  Suppose  the  company  just  organized ;  under  counsel's  view  the 
consumer  may,  there  being  no  legislation  on  the  subject,  be  compelled 
to  pay  the  cost  of  delivering  water  to  him  for  the  entire  twenty  jears 
of  its  existence,  before  he  can  exercise  his  constitutional  right  during  a 
single  season. 

But  there  is  nothing  in  the  law  obliging  him  to  cultivate  his  land  for 
any  particular  period.  He  may  not  want  the  water  for  twent}'  years, 
or  it  may  be  utterly  impossible  for  him  to  advance  so  large  a  sum  at 
once.  In  fact,  the  majority  of  those  who  till  the  soil  are  too  poor  to 
comply  with  such  a  demand  ;  to  sa}'  that  they  must  do  so  or  have  no 
water  is  to  deprive  them  of  their  right  to  its  use  just  as  effectually  as 
though  the  right  itself  had  no  existence.  It  is  true  these  people  would 
not  themselves  be  able  to  bring  water  from  the  natural  streams  to  their 
farms,  and  without  the  carrier  they  might  be  compelled  to  abandon 
their  attempt  at  agriculture.  This  consideration,  however,  onl}'  rein- 
forces the  position  that  a  reasonable  control  was  intended.  The  car- 
rier must  be  regarded  as  an  intermediate  agency  existing  for  the 
purpose  of  aiding  consumers  in  the  exercise  of  their  constitutional 
right,  as  well  as  a  private  enterprise  prosecuted  for  the  benefit  of  its 
owners.  Yet,  if  such  exactions  as  the  one  we  are  now  considering  are 
legal,  the  carrier  might,  at  its  option,  in  the  absence  of  legislation, 
effectuate  or  defeat  the  exercise  of  this  right ;  and  we  would  have  a 
constitutional  provision  conferring  an  aflSrmative  right,  subject  for  its 
eflacacy  in  a  given  section  to  the  greed  or  caprice  of  a  single  individual 
or  corporation. 

Besides  the  extraordinary  power  mentioned,  the  carrier  would  also, 
under  counsel's  view,  be  able  to  consummate  a  most  unreasonable  and 
unjust  discrimination.  B.  could  have  water  because  he  can  pay  for  its 
carriage  twenty  years  in  advance ;  C.  could  not  have  water  because 
he  is  unable  to  pay  in  advance  for  its  carriage  beyond  a  season  or 
two. 

But,  say  counsel,  C.'s  only  remedy,  and  the  only  remedy  of  relator 
and  other  consumers  dissatisfied  with  the  carrier's  terms,  is  by  applica- 


420     WHEELER  V.   NORTHERN  COLORADO  IRRIGATION  CO. 

tioD  to  the  count}'  commissioners.  I  repl}' :  First,  that  so  far  as  the 
present  case  is  concerned,  this  suggestion  embodies  but  little  consola- 
tion. Relator's  land  is  situate  in  Arapahoe  county.  Tlie  statute,  as 
it  stood  when  the  proceedings  described  in  the  alternative  writ  took 
place,  did  not  permit  the  commissioners  of  that  county  to  act  with  re- 
ference to  respondent's  canal ;  while,  under  the  constitution,  the  com- 
missioners of  no  other  county  could  exercise  the  necessary  jurisdiction. 
It  was  utterly  impossible,  therefore,  for  relator  to  secure  relief  in  the 
manner  pointed  out,  and  if  the  courts  could  not  take  cognizance 
of  the  alleged  grievance  he  was  wholly  bereft  of  means  ot  redress. 
I  reply :  Second,  that  the  commissioners  may  be  empowered  to  fix 
tlie  maximum  amount  of  the  rate ;  that  is,  they  may  be  authorized 
to  announce  a  limit  beyond  which  the  carrier  cannot  go.  In  my 
judgment,  under  the  constitution  they  cannot  be  vested  with  authority 
to  establish  the  exact  rate  to  be  charged,  or  to  specify  either  the  time 
or  conditions  of  paj'ment  The  time  and  conditions  of  payment  are 
proper  subjects  for  legislation.  The  Legislature  doubtless  has  author- 
ity to  say  that  the  rate,  whether  the  carrier  adopt  the  maximum  fixed 
b}-  the  commissioners  or  establish  one  below  such  limit,  shall  be  col- 
lected annualh*  in  advance  of  each  irrigating  season  ;  or  it  can  make 
any  other  reasonable  regulations  in  these  respects.  But  the  legislature 
itself  cannot  establish  the  unreasonable  rule  we  have  been  consider- 
ing, which  enables  the  carrier  to  accomplish  a  wholesale  discrimination 
between  consumers,  and  den}-,  if  it  chooses,  to  a  majority  of  them, 
the  rights  secured  them  b}'  the  constitution.  A  regulation  or  rule 
entailing  such  results,  whether  established  by  the  legislature  or  carrier, 
must  be  regarded  as  within  a  constitutional  inhibition.  This  conclu- 
sion is  not  based  merely  upon  the  ground  of  private  inconvenience  or 
hardship;  it  rests,  as  will  be  observed,  upon  the  higher  and  stronger 
ground  of  conflict  with  the  beneficent  purpose  of  our  fundamental 
law. 

A  further  consideration  worth}'  of  mention  in  passing,  bearing  at 
least  upon  the  unreasonableness  of  the  view  urged  upon  us,  is  the 
position  of  the  consumer  who  pays  the  charges  lor  twenty  years  in 
advance.  "What  assurance  has  he  that  the  carrier  can  or  will  keep  its 
engagement  during  that  period  ?  Its  business  is  attended  with  con- 
siderable hazard,  and  requires  large  and  continuing  expenditures  of 
money.  The  consumer  may  find  himself  without  water,  and  depend- 
ent, for  the  recovery  of  his  large  advancement,  upon  the  doubtful 
experiment  of  suit  against  an  insolvent  company. 

To  say  that  the  courts  may  not  interfere,  under  the  circumstances 
above  narrated,  is  to  say  that  the  clear  intent  of  the  constitution  in 
relation  to  a  constitutional  right  may  be  disregarded  with  impunity, 
simply  because  no  express  inhibitory  constitutional  or  statutory  provi- 
sion on  the  subject  can  he  found  ;  also  that,  for  a  like  reason,  one 
charged  with  an  important  duty  may  condition  its  performance  upon 
unreasonable  and  oppressive  demands. 


WHEELER  V.   NORTHERN   COLORADO   IRRIGATION  CO.  421 

I  do  not  usurp  the  province  of  the  Legislature  b}'  declaring  what 
would  be  reasonable  requirements  as  to  the  time  and  manner  of  collect- 
ing water  rates.  My  position  is  that,  for  the  reasons  given,  respond- 
ent's demand  of  $10  per  acre,  as  an  advance  pa3-ment  of  part  of  the 
transportation  charge  for  the  remaining  years  of  its  corporate  life,  is 
illegal  as  well  as  unreasonable  and  oppressive. 

Respondent's  enterprise  is  of  great  public  importance  and  benefit. 
The  original  construction  of  its  canal  cost  large  sums  of  money,  and 
its  running  expenses  are  necessarily  heav}'.  For  a  considerable  period 
the  capital  invested  must  have  been  unproductive.  These  and  other 
circumstances  may  be  proper  subjects  for  consideration  by  the  com- 
missioners, when  called  upon  to  establish  a  maximum  rate.  And  when- 
ever the}'  become  appropriate  matters  for  judicial  cognizance,  the 
attention  deserved  will  be  received  from  the  courts.  But  no  expen- 
diture, however  vast,  and  no  inconvenience,  however  great,  can  justify 
or  legalize  the  exaction,  the  consumer  objecting,  of  the  demand  under 
consideration,  as  an  absolute  condition  precedent  to  use  for  the  cur- 
rent irrigating  season. 

It  is  not  necessary  to  consider  what  would  have  been  the  result  had 
respondent  charged  $11.50  per  acre  for  the  irrigating  season  of  1886, 
instead  of  demanding  $1.50  for  that  season  and  $10  per  acre  as  part 
payment  for  future  years.  Neither  is  it  necessary  to  speculate  as  to 
what  respondent  would  have  charged  for  the  season  mentioned  hud 
the  law  been  understood  by  its  officers  according  to  the  construction 
above  given.  In  view  of  the  pleadings,  and  especially  of  the  language 
employed  in  respondent's  contract,  I  think  that  relator,  upon  the  show- 
ing made,  was  entitled  to  the  use  of  water  from  respondent's  canal 
for  the  irrigating  season  specified  in  the  alternative  writ.  This  con- 
clusion is  emphasized  b}'  the  defective  condition  of  the  commissioners' 
statute  prior  to  1887,  which  left  relator  helpless  so  far  as  action  by  that 
body  was  concerned.  I  also  think  that  mandamus  lay  for  the  enforce- 
ment of  his  rights  in  the  premises. 

The  demurrer  should  have  been  overruled  and  the  judgment  must, 
therefore,  be  reversed,  appellant  recovering  his  costs. 

But  courts  do  not  order  the  performance  of  impossible  acts.  This 
proceeding  was  instituted  for  the  purpose  of  compelling  respondent  to 
supply  relator  with  water  during  the  irrigating  season  of  1886.  Since 
then  respondent  may  have  changed  its  annual  charge  or  rate;  besides, 
the  only  tender  or  demand  appearing  in  the  record  were  for  that  sea- 
son. To  order  compliance  with  relator's  request  for  1886  would  be 
absurd;  to  order  a  delivery  of  the  water  for  1888  would  be  unwar- 
ranted. To  permit  an  amendment  of  the  alternative  writ,  so  as  to 
cover  the  approaching  irrigating  season,  would  be  to  allow  the  substi- 
tution, in  this  proceeding,  of  a  new  and  wholly  different  cause  of  action 
and  to  violate  an  established  rule  of  pleading. 

The  Judgment  is  reversed  and  the  cause  remanded- 


422  LOUISVILLE   GAS   CO.   V.   DULANEY   AND   ALEXANDER. 

LOUISVILLE  GAS  CO.  v.  DULANEY  AND  ALEXANDER. 
Court  of  Appeals,  Kentucky,  1897. 

[100  Ky.  405.1] 

Hazelrigg,  J.,  delivered  the  opinion  of  the  court. 

The  charter  of  the  appellant  confers  on  it  the  exclusive  privilege  of 
erecting,  maintaining,  and  operating  gas  works  in  the  city  of  Louisville 
for  the  manufacture  and  sale  of  gas  for  illuminating  purposes,  and  sec- 
tion 12  thereof  provides  that  "said  compan}-  shall  furnish  illuminating 
gas  to  private  consumers  who  may  apply  therefor,  under  reasonable 
rules  and  regulations  to  be  prescribed  by  the  company,  at  a  price  not 
to  exceed  one  dollar  and  thirty-five  cents  for  one  thousand  cubic  feet, 
less  a  discount  of  five  cents  per  one  thousand  cubic  feet,  to  all  persons, 
including  the  cit}',  except  as  to  street  lamps,  paying  their  bills  within 
five  days  after  same  are  due." 

The  appellees  are  private  consumers  of  the  appellant's  gas,  and  upon 
their  refusal  to  pa}-  a  charge  for  meter  rent  the  company  was  about  to 
shut  off  the  supply.  This  the  appellees  enjoined,  relying  on  the  provi- 
sions of  the  section  quoted  as  furnishing  the  total  charge  for  gas  to 
which  they  could  be  subjected. 

The  meter  rent  is  sought  to  be  upheld  as  a  "  reasonable  rule  and 
regulation,"  within  the  meaning  of  those  terms  in  the  charter,  and  is 
not  imposed  on  consumers,  as  appears  from  the  answer,  unless  they 
fail  to  use  a  certain  minimum  amount  of  gas  in  a  given  month. 

This  process  of  charging  rent  is  illustrated  by  the  memorandum  on 
the  back  of  the  gas  bills  on  file,  as  follows :  — 

"METER  RENT. 

'•3  light  meter,  consuming  500  cubic  feet  or  less,  10  cents  per 
month. 

"■  5  light  meter,  consuming  800  cubic  feet  or  less,  12  cents  per 
month. 

"10  light  meter,  consuming  1,000  cubic  feet  or  less,  15  cents  per 
month. 

"20  light  meter,  consuming  1,200  cubic  feet  or  less,  17  cents  per 
month. 

"30  light  meter,  consuming  1,500  cubic  feet  or  less,  20  cents  per 
month. 

"45  light  meter,"  etc. 

Appellees,  Dulaney  and  Alexander,  used  (in  their  law  oflBce)  a  three- 
light  meter,  and,  having  consumed  in  a  given  month  only  200  cubic 
feet,  were  charged  ten  cents  in  addition  to  the  regular  price  of  the  gas. 
Appellee  Stone  used  a  thirtj'-light  meter  (in  his  residence),  and,  having 

1  Opinion  only  is  printed.  —  Ed. 


LOUISVILLE    GAS   CO.   V.   DULANEY   AND   ALEXANDER.  423 

consumed   less   than    1,500   cubic   feet  in   tliree   given  months,   was 
charged  sixty  cents  in  addition  to  the  price  of  gas. 

It  is  averred  in  the  answers  that  there  are  man}'  persons  in  the  city 
to  whose  fixtures  in  their  houses,  stores,  and  offices  the  appellant  has 
attaclied  its  pipes,  but  who  procure  their  lights  from  certain  electric 
light  companies,  and  who  use  the  gas  light  furnished  by  the  appellant 
only  occasionally,  and  when  by  accident  they  are  deprived  of  their 
electric  lights ;  that  these  persons,  therefore,  use  a  very  small  quantit}' 
of  gas,  and  are  the  persons  mainly  affected  b^'  the  meter  charge ;  that 
in  adopting  this  rule  to  furnish  gas  to  all  who  appl}-,  however  small  a 
quantity  may  be  demanded,  and  fixing  a  uniform  charge  on  rent  of 
meters  when  a  minimum  amount  of  gas  is  consumed,  it  has  attempted 
in  good  faith  to  do  justice  to  all  without  discrimination.  A  demurrer 
was  sustained  to  the  answer  in  each  case,  and  the  injunction  per- 
petuated.    In  this  we  concur. 

The  gas  meter  is  the  property  of  the  company,  and  is  as  necessary 
to  the  company  in  the  measurement  of  its  gas  as  are  its  works  for  its 
manufacture.  At  least  some  process  of  measurement  is  as  necessar}', 
and  while  other  methods  have  been  used,  the  meter,  we  believe,  is 
regarded  as  the  best  known  method,  and  is  generally  adopted.  While 
the  consumer  ma}"  cause  it  to  be  inspected,  and  may  test  the  accuracy 
of  its  work,  his  concern  is  onl}'  to  ascertain  and  pay  for  what  gas  he 
has  consumed,  and  cannot  be  called  on  to  pay  for  the  apparatus  used 
in  its  measurement  an}'  more  than  he  can  be  made  to  pay  for  the 
machinery  used  in  its  manufacture.  He  is  required  to  pay  the  legal 
rate  for  the  quantity  consumed,  and  this  quantity  must  be  ascertained 
by  the  company  by  some  correct  method. 

The  company  can  only  charge  for  the  quantity  it  actually  furnishes, 
and,  to  ascertain  what  it  furnishes,  it  must  measure  it — how,  the  con- 
sumer does  not  care,  so  it  is  measured  correctly. 

The  appellees,  therefore,  are  entitled  to  have  their  gas  furnished  to 
them  already  measured  ;  and,  for  it  so  measured,  they  can  be  made  to 
pay  at  the  price  of  $1.35  per  thousand  feet,  and  no  more. 

If  the  price  of  gas  were  unrestricted  in  the  organic  law  of  the  cor- 
poration, the  rule  charging  a  higher  price  to  small  consumers  might  be 
upheld.  A  wholesale  merchant  sells  for  a  less  price  than  does  the 
retailer,  and  this  is  entirely  reasonable.  The  question  would  then  be 
the  ascertainment  of  what  is  a  reasonable  rate,  and  this  is  the  question 
involved  in  the  case,  relied  on  by  the  appellant,  of  the  State  of 
Missouri  ex  rel.,  &c.,  v.  Sedalia  Gas  Light  Co.,  34  Mo.  App.  501. 
There  the  company  required  the  payment  by  the  consumer  of  $1.25 
per  month  when  the  amount  of  gas  used  was  less  than  500  cubic  feet» 
and  this  sum  was  denominated  "  rent  of  meter."  It  was  held  that  this, 
charge  was  not  unreasonable,  and  that  while  the  sum  fixed  was  desig- 
nated as  "rent  of  meter,"  it  was  in  fact  pay  for  all  gas  consumed  by 
the  customer  to  the  extent  of  500  cubic  feet. 

Presumably  the  company  was  aware  when  it  obtained  its  charter  and 


424  GOULD  V.   EDISON   ELECTRIC   ILLUMINATING  CO. 

established  its  monopol}'  that  there  would  be  small  consumers  as  well 
as  large  ones,  and  there  would  be  less  profit  in  furnishing  the  one  class 
than  the  other,  but  it  did  not  on  that  account  reject  the  charter  or 
obtain  the  right  to  add  to  the  price  of  the  small  consumer's  bill. 

The  judgments  are  affirmed. 


GOULD  V.  EDISON  ELECTRIC  ILLUMINATING  CO. 

Supreme  Court  of  New  York,   1899. 

[60  N.  Y.  S.  559.] 

Beekuan,  J.  This  action  is  brought  for  a  mandatory  injunction  re- 
quiring the  defendant  to  reconnect  the  electric  light  appliances  in 
plaintiff's  apartments  with  the  conductors  of  the  defendant,  and  to 
resume  supplying  the  plaintiff  with  electric  light.  Damages  to  the 
extent  of  $500  are  also  demanded  for  the  refusal  of  the  defendant  to 
comply  with  plaintiff's  demand  for  such  service.  An  answer  has  been 
interposed,  which,  among  others,  contains  what  is  described  as  a  sec- 
ond and  separate  defence  to  the  amended  complaint.  To  this  the 
plaintiff  has  demurred  for  insuflScienc}-.  Without  undertaking  to  state 
in  full  the  allegations  it  contains,  which  are  somewhat  voluminous,  it 
is  suflScient  to  say  that  the  controversy  arises  upon  the  reasonable- 
ness of  one  provision  which  the  defendant  requires  the  plaintiff  to 
assent  to  as  a  condition  of  supplying  him  with  the  light  desired.  This 
provision  was  embodied  in  a  paper  tendered  to  the  plaintiff  for  signa- 
ture, described  in  the  answer  as  "the  usual  and  regular  application 
for  lighting  service  of  the  form  and  tenor  theretofore  adopted  by  the 
defendant,  and  required  of  all  its  customers."  The  stipulation  in  ques- 
tion, quoting  from  the  answer,  was  that  the  plaintiff  "would  use  elec- 
tric current  supplied  by  defendant  for  lighting  his  premises  for  the 
period  of  one  year  from  the  time  at  which  connection  between  the  de- 
fendant's mains  and  his  premises  should  be  made,  and  that  he  would 
pay  for  such  electric  current  used  by  him  during  each  month  on  pre- 
sentation of  bill  at  the  rate  of  one  cent  per  hour  for  each  sixteen  can- 
dle-power lamp,  or  the  equivalent  thereof,  as  measured  by  the  meter 
upon  the  said  premises  for  the  purpose  of  measuring  the  current  sup- 
plied under  such  application,  subject  to  certain  discounts  therein  set 
forth."  It  was  further  provided  that  "a  minimum  monthly  charge  of 
one  dollar  and  fifty  cents  ($1.50)  should  be  made  by  the  company  for 
each  separate  month  during  which  the  agreement  should  be  in  effect." 
It  is  this  last  provision  which  the  plaintiff  resists  as  unreasonable,  and, 
if  his  contention  in  that  regard  is  correct,  the  defendant  had  no  right 
to  require  his  assent  thereto  as  a  condition  of  performing  the  legal  dut}' 
which  rests  upon  it  of  supplying  light  when  properly  demanded.  What 
that  duty  is  is  expressed  in  article  G,  §  65,  of  the  transportation  cor- 


GOULD  V.   EDISON   ELECTRIC   ILLUMINATING   CO.  425 

porations  law  (chapter  566,  Laws  1890),  which,  among  other  things, 
provides  that,  upon  application  in  writing  of  the  owner  or  occupant  of 
any  building  or  premises  within  one  hundred  feet  of  the  wires  of  any 
electric-light  corporation,  and  the  payment  by  him  of  all  money  due 
from  him  to  such  corporation,  the  latter  shall  supply  electric  light  as 
may  be  required  for  lighting  such  building  or  premises  ;  and  that  if 
for  the  space  of  ten  days  after  such  application  and  the  deposit,  if 
any  be  required,  of  a  reasonable  sum,  which  the  company  is  entitled  to 
exact  as  security  for  the  payment  of  its  compensation,  the  corporation 
shall  refuse  or  neglect  to  supply  electric  light  as  required,  such  corpora- 
tion shall  forfeit  and  pay  to  the  applicant  the  sum  of  $10,  and  the  further 
sum  of  $5  for  ever}'  day  thereafter  during  which  such  refusal  or  neg- 
lect shall  continue.  It  is  provided,  however,  that  no  such  corporation 
shall  be  required  to  lay  wires  necessary  to  comply  with  such  an  appli- 
cation where  the  ground  in  which  the  same  is  required  to  be  laid  shall 
be  frozen,  or  shall  otherwise  present  serious  obstacles  to  laying  the 
same ;  nor  unless  the  applicant,  if  required,  shall  deposit  in  advance 
with  the  corporation  a  sum  of  money  sufficient  to  pa}'  the  cost  of  his 
portion  of  the  wire  required  to  be  laid,  and  the  expense  of  laying 
such  portion. 

It  will  be  observed  that  the  Legislature  has  not  undertaken  to  regu- 
late the  price  at  which  such  Hght  shall  be  supplied,  nor  to  limit  or 
define  what  compensation  the  corporation  ma}'  exact  for  the  service 
rendered  by  it.  In  that  regard  it  is  under  no  legal  restraint,  except 
that  its  charges  must  be  reasonable  and  uniform.  Whether,  in  a  given 
case,  they  are  so  or  not,  is  a  proper  subject  for  inquiry  and  determina- 
tion by  the  court,  in  view  of  the  quasi  pubUc  nature  of  the  business, 
and  the  duty  towards  the  public  imposed  by  law  upon  the  corporation. 
Lough  V.  Outerbridge,  143  N.  Y.  271,  277,  38  N.  E.  292.  The  statute 
recognizes  the  right  to  charge  for  light  consumed,  the  cost  and  ex- 
pense of  laying  wires,  and  a  rental  for  wire  and  apparatus  (Transpor- 
tation Corporations  Law,  art.  6,  §§  66,  68);  but  it  does  not  assume 
to  say  what  may  or  may  not  be  reserved  for  either,  nor  does  it  require 
the  amount  charged  to  be  separated  into  items  with  respect  to  its  con- 
stituent elements.  The  law  does  not  contemplate  that  the  defendant 
shall  do  business  at  a  loss.  It  is  expected  that  it  will,  and  it  is  en- 
titled to,  make  a  reasonable  profit  upon  its  venture,  and  the  sole  ques- 
tion in  such  a  case  as  this  is  whether  the  charge  made  is  unreasonable, 
considering  all  that  the  defendant  is  required  to  do  to  meet  each  cus- 
tomer's demand.  It  is  stated  in  the  fourth  paragraph  of  the  defence 
demurred  to  that  the  current  is  generated  by  dynamos  driven  by  steam 
engines  supplied  with  steam  from  boilers,  all  located  in  a  station  build- 
ing, and,  when  generated,  is  transmitted  directly  to  the  defendant's 
underground  conductors  leading  to  the  premises  of  the  consumer;  that 
each  additional  lamp  connected  with  defendant's  system  necessitates 
an  additional  investment  by  it  in  distributing  conductors  and  local  ap- 
pliances of  about  $20  in  addition  to  the  cost  of  generating  and  deliv- 


426  GOULD   V.   KDISON    ELECTRIC   ILLUMINATING  CO. 

ering  the  electric  current;  that  the  number  of  lamps  which  the  plaintiff 
desired  was  eleven,  and  that  the  total  additional  investment  thus  made 
necessary  in  order  to  comply  with  iiis  demand  for  service  was  at  least  the 
sum  of  $220.  How,  then,  can  it  be  said  that  a  fixed  charge,  not  based 
upon  actual  consumption,  is  of  itself  improper  or  unreasonable?  The 
customer  does  not  bind  himself  to  use  an}'  particular  amount  of  light, 
so  that  the  return  to  the  company,  based  on  actual  consumption,  would 
rest  entirely  upon  his  volition,  and  it  would,  therefore,  depend  upon 
bim  whether  the  service  he  has  required  the  corporation  to  be  in  con- 
stant and  immediate  readiness  to  render  is  profitable  or  unprofitable  to 
the  latter.  But  this  constant  condition  of  readiness  is  a  necessary 
and  unavoidable  obligation,  which  must  be  sustained,  in  order  to  meet 
instantaneousl}'  the  demand  for  light,  which  the  consumer  is  entitled  to 
have  at  any  moment  that  he  wishes  it.  It  thus  forms  a  part  of  the 
service  to  be  rendered,  and  is  an  item  properly  to  be  considered  when 
the  reasonableness  of  the  charges  exacted  by  the  company  is  called  in 
question.  As  we  have  seen,  the  latter  is  not  confined  by  statute  to 
any  specific  rate,  nor  has  any  attempt  been  made  to  measure  or  limit 
the  compensation  which  such  corporations  may  lawfully  charge,  as  has 
been  done  in  the  case  of  gas  companies,  so  that  they  are  free  to  exact 
a  reasonable  return  for  the  service  required,  which  includes,  as  I  have 
said,  not  only  the  actual  supply  of  electric  light,  but  the  readiness  to 
supply  it,  coincidently  with  the  customer's  desire  to  have  it.  The  only 
condition  affecting  the  right  is  that  the  compensation  must  be  reason- 
able, and,  what  is  also  incidental  to  this  requirement,  that  it  should  be 
uniform,  nameh',  the  same  for  all  customers  similarly  situated.  Un- 
doubtedly, the  demand  which  those  desiring  to  use  it  are  entitled  to 
make  for  electric  light  imports  an  intention  on  their  part  to  consume 
it  to  some  extent,  and  that  each  lamp  ordered  is  requisite  for  that  pur- 
pose. The  charge  which  the  defendant  makes  is  based  primarily  upon 
actual  consumption  over  which  it  has  no  control.  One  consumer  with 
the  same  number  of  lamps  will  use  more  than  another.  In  both  cases 
the  return  to  the  company  may  be  remunerative,  or  the  use  of  one  may 
be  so  inconsiderable  as  to  involve  a  loss.  To  meet  this  contingency 
the  monthh*  minimum  charge  of  $1.50  is  made.  But  it  must  be  borne 
in  mind  that  this  payment  is  not  in  addition  to  the  charge  for  actual 
consumption.  Where  light  is  consumed  which  entitles  the  company 
to  payment,  on  meter  measurement,  of  a  sum  per  month  equal  to  or  in 
excess  of  the  so-called  minimum  charge,  the  customer  pays  onl}-  for 
the  light  he  has  actually  had;  so  that  this  fixed  charge  becomes  practi- 
cally operative  onh'  where  his  consumption  falls  below  the  extent  of 
use  which  it  measures.  I  can  see  nothing  unreasonable  in  this  when 
the  service,  as  I  have  defined  it,  which  the  company  is  obliged  to  ren- 
der, is  considered.  It  is  not  a  penalty  for  a  failure  to  use  defendant's 
prodiict.  but  is  properly  to  be  regarded  as  compensatory  for  that  part 
of  the  service  which  is  at  all  times  being  rendered  in  the  maintenance 
of  the  apparatus  and  connections  through  which  the  electric  current  is 


SNELL   V.  CLINTON   ELECTRIC  LIGHT,  HEAT   AND  POWER  CO.      427 

made  available  to  the  customer  for  the  production  of  light  at  his  plea- 
sure. The  plaintiff  distinctly  refused  to  pay  any  such  charge,  and  the 
defendant  was,  therefore,  justified  in  refusing  to  supply  him  with  light. 
The  duty  resting  upon  the  company  under  the  statute  imports  a  recip- 
rocal one  on  the  part  of  the  customer  to  pay  for  the  service  which  he 
requires,  and,  where  the  latter  refuses  in  advance  to  pay  charges  which 
appear  to  be  reasonable,  the  company'  is  under  no  obligation  to  render 
the  service  demanded.  As  the  defence  in  question  is  sufficient  upon  its 
face,  it  follows  that  the  demurrer  thereto  must  be  overruled. 

The  demurrer  is  therefore  overruled,  with  costs,  and  judgment  or- 
dered in  favor  of  the  defendant  accordingly. 


SNELL  V.   CLINTON  ELECTRIC   LIGHT,  HEAT  AND 
POWER  COMPANY. 

Supreme  Court  of  Illinois,  1902. 

[196///.  626.] 

Mr.  Justice  Carter  delivered  the  opinion  of  the  court : 
The  trial  court  evidently  held  that  the  law  applicable  to  the  facts  as 
found  by  the  jury  justified  the  awarding  of  the  writ,  for  it  refused  to 
hold  the  proposition  of  law  submitted  on  that  question  by  appellee, 
while  the  Appellate  Court  was  of  the  contrary  opinion,  for  it  made  no 
finding  of  facts  different  from  those  found  by  the  jury  and  the  court 
below.  The  only  question  here  is,  therefore,  whether  or  not,  upon  the 
evidence  as  found,  the  appellee  made  an  unjust  discrimination  against 
appellant  in  charging  him  for  a  transformer  in  addition  to  the  regular 
rates  for  electric  lighting. 

There  is  no  statute  regulating  the  manner  under  which  electric  light 
companies  shall  do  business  in  this  State.  They  are  therefore  subject 
only  to  the  common  law  and  such  regulations  as  may  be  imposed  by 
the  municipality  which  grants  them  privileges.  At  common  law, 
whether  or  not  a  difference  in  the  treatment  accorded  to  different 
patrons  amounts  to  a  discrimination  must  depend  upon  the  surround- 
ing circumstances.  A  mere  difference  does  not,  of  necessity,  consti- 
tute unlawful  discrimination.  Appellee  in  its  answer  to  appellant's 
petition,  avers  that  the  purpose  and  ofl3ce  of  a  transformer  is  chiefly 
for  the  protection  of  the  house  or  building  connected  with  the  electri- 
cal system ;  that  it  prevents  an  excessive  number  of  volts  of  elec- 
tricity from  passing  from  the  main  street  wire  into  the  building  to 
be  lighted  ;  that  the  wires  usually  used  inside  a  building  are  much 
smaller  than  the  street  wires  and  incapable  of  safely  carrying  so  many 
volts  of  electricity  as  pass  along  the  street  wires ;  that  if  all  the  vol- 


428     SNELL  V.   CLINTON   ELECTRIC   LIGHT,    HEAT   AND   POWER   CO. 

tage  carried  on  the  street  wires  were  turned  into  the  residence,  the 
natural  consequence  would  probably  be  that  the  house  wires  would 
melt  and  the  heat  from  the  excessive  voltage  would  cause  a  fire ;  that 
it  is  to  prevent  this  result  that  a  transformer  is  necessary.  A  trans- 
former or  converter  is  described  by  counsel  as  a  coil  c  '  copper  wire 
contained  in  a  sheet-iron  box,  and  is  usually  placed  on  a  pole  outside  of 
the  building.  Its  office  is  to  reduce  the  current  from  the  main  line,  or, 
rather,  to  induce  a  lesser  current  in  the  fire  leading  to  the  house  for  house 
use.  In  this  case  the  voltage  would  have  been  reduced  from  one  thou- 
sand volts  to  fifty  or  a  hundred  volts.  It  appears  that  without  the  use 
of  a  converter  the  effect  of  turning  this  large  voltage  into  a  house 
would  be  to  burn  up  the  wires,  and  in  the  formation  of  short  circuits 
there  would  be  a  great  danger  of  fire,  and  that  the  object  of  the  con- 
verter is  the  protection  of  the  house.  It  is  a  necessary  appliance  for 
the  safe  lighting  of  houses.  The  appellee  had  been  in  the  habit  of 
furnishing  transformers,  as  needed,  without  any  extra  charge,  for  all 
houses  which  were  wired  for  electricity  by  it,  but  claimed  the  right  to 
charge  for  transformers  in  cases  where  it  did  not  do  the  wiring,  as  it 
made  no  profit  on  the  wiring  in  such  cases.  The  transformer  is  just 
as  much  a  necessary  appliance  in  lighting  houses  as  the  pole  on  which 
it  is  fastened,  or  the  wire  that  carries  the  electricity,  or  the  boilers 
and  dynamo  used  in  generating  it.  It  is  entirely  immaterial  who  does 
the  wiring  of  the  house  —  the  electric  light  company  or  some  other 
party ;  the  transformer  is  necessary  in  either  case.  If  the  company 
does  the  wiring,  that  is  a  business  distinct  from  that  of  furnishing  elec- 
tricity for  lighting  purposes,  —  just  as  the  putting  in  of  gas  and  water 
pipes  into  a  house  is  a  distinct  business  from  furnishing  the  gas  or 
water  to  flow  through  them. 

The  jury  found  that  the  appellee  had  not  demanded  extra  pay  for 
the  use  of  a  transformer  from  anyone  else,  and  that  it  was  its  general 
practice  and  custom  to  furnish  them  free  to  its  consumers.  Appellee, 
being  organized  to  do  a  business  affected  with  a  public  interest,  must 
treat  all  customers  fairly  and  without  unjust  discrimination.  While  it 
is  not  bound,  in  the  absence  of  statutory  enactments,  to  treat  all  its 
patrons  with  absolute  equality,  still  it  is  bound  to  furnish  light  at  a 
reasonable  rate  to  every  customer  and  without  unjust  discrimination. 
In  29  Am.  &  Eng.  Enc.  of  Law,  19,  it  is  said :  "  The  acceptance  by  a 
water  company  of  its  franchise  carries  with  it  the  duty  of  supplying  all 
persons  along  the  line  of  its  mains  without  discrimination,  with  the 
commodity  which  it  was  organized  to  furnish.  All  persons  are  en- 
titled to  have  the  same  service  on  equal  terms  and  at  uniform  rates." 
In  commenting  on  this,  the  Supreme  Court  of  North  Carolina,  in  Grif- 
fin V.  Goldsboro  Water  Co.,  30  S.  E.  Rep.  319,  says:  "  If  this  were 
not  so,  and  if  corporations  existing  by  the  grant  of  public  franchises 
and  supplying  the  great  conveniences  and  necessities  of  modern  city 
life,  as  water,  gas,  electric  light,  street  cars,  and  the  like,  could 
charge  any  rates,  however  unreasonable,  and  could  at  will  favor  certain 


SNELL  V.   CLINTON   ELECTRIC  LIGHT,   HEAT   AND   POWER  CO.      429 

individuals  with  low  rates  and  charge  others  exorbitantly  high,  or 
refuse  service  altogether,  the  business  interests  and  the  domestic  com- 
fort of  every  man  would  be  at  their  mercy.  .  .  .  The  law  will  not  and 
cannot  tolerate  discrimination  in  the  charges  of  these  quasi  public 
corporations.  There  must  be  equality  of  rights  to  all  and  special 
privileges  to  none."  In  Cincinnati,  Hamilton  and  Daj'ton  Railroad 
Co.  V.  Village  of  Bowling  Green,  49  N.  E.  Rep.  121,  the  Supreme 
Court  of  Ohio  said :  "  The  light  and  power  company  have  acquired  in 
the  village  rights  that  are  in  the  nature  of  a  monopoly.  .  .  .  Both 
reason  and  authority  deny  to  a  corporation  clothed  with  such  rights 
and  powers  and  bearing  such  relation  to  the  public  the  power  to  arbi- 
trarily fix  the  price  at  which  it  will  furnish  light  to  those  who  desire  to 
use  it.  .  .  .  The  company  was  bound  to  serve  all  of  its  patrons  alike. 
It  could  impose  on  the  plaintiff  in  error  no  greater  charge  than  it 
exacted  of  others  who  had  used  its  lights."  In  Owensboro  Gaslight 
Co.  V.  Hildebrand  and  Owensboro  Electric  Co.  v.  Hildebrand,  42  S.  W. 
Rep.  351,  the  Court  of  Appeals  of  Kentucky  said:  "Practically  they 
have  a  monopoly  of  the  business  of  manufacturing  and  furnishing  gas 
within  the  corporate  limits  of  the  city.  It  is  therefore  their  duty  to 
furnish  the  city's  inhabitants  with  gas,  and  to  do  so  upon  terms  and  con- 
ditions common  to  all,  and  without  discrimination.  They  cannot  fix  a 
variety  of  prices  or  impose  different  terms  and  conditions,  according 
to  their  caprice  or  whim." 

It  has  been  held  at  common  law  and  in  the  absence  of  statutes,  in 
the  case  of  common  carriers,  that  as  long  as  they  carry  at  a  reasonable 
rate  for  every  shipper,  no  one  can  complain  if  they  are  willing  to  carry 
for  others  at  a  less  rate.  (5  Am.  &  Eng.  Enc.  of  Law,  —  2d  ed.  — 
179.)  If  we  apply  this  rule  to  the  case  at  bar,  it  will  be  noticed  that 
the  appellee  has  demanded  of  appellant  more  than  it  has  of  any  of  its 
other  customers.  This  is  not  the  favor  allowed  by  the  common  law,  as 
just  cited,  but  an  unjust  discrimination.  Appellee  has  discriminated 
unjustly  against  appellant  in  any  view  of  the  law  and  the  circum- 
stances that  we  can  take,  and  it  follows  that  the  judgment  of  the  cir- 
cuit court  was  right. 

The  judgment  of  the  Appellate  Court  will  be  reversed  and  the  judg- 
ment of  the  circuit  court  affirmed.^  Judgment  reversed. 

1  Accord:  Ex  parte  Benson,  18  S.  C.  38 ;  Houston  &  T.  C.  R.  R.  v.  Rust,  58  Tex. 
98.  Contra:  Mobile  v.  Brenville  Water  Co.,  130  Ala.  379;  L.  E.  &  St.  L.  R.  R.  v. 
Wilson,  132  Ind.  517;  Railroad  Discrimination  Case,  136  N.  C.  479;  Scofield  v.  L.  S. 
&  M.  S.  R.  R.,  49  Oh.  St.  571.  —  Ed. 


430  SMITH   V.   CAPITAL   GAS  CO. 


SMITH  V.  CAPITAL   GAS   CO. 
Supreme  Coubt  of  Caufornia,  1901. 

[132  Cal.  209.1] 

Smith,  C.  The  suit  was  brought  to  recover  of  the  defendant  liqui- 
dated damages,  —  amounting  to  thirteen  hundred  dollars,  —  alleged 
to  be  due  under  the  provisions  of  §  629  of  the  Civil  Code,  for  refusal 
to  furnish  gas  to  the  plaintiff.  The  judgment  was  for  the  defendant, 
and  the  plaintiff  appeals.  The  provision  of  the  code  in  question  is, 
that,  "upon  the  application,  in  writing,  of  the  owner  or  occupant  of 
any  building  or  premises  distant  not  more  than  one  hundred  feet  from 
any  main  of  the  corporation,  .  .  .  the  corporation  must  suppl)'  gas  as 
required  for  such  building  or  premises,"  &c.  ;  and  further,  that  '  *  if, 
for  the  space  of  ten  days  after  such  application,  the  corporation  re- 
fuses or  neglects  to  supply  the  gas  required,  it  must  pay  to  the  appli- 
cant the  sum  of  fift}'  dollars  as  liquidated  damages,  and  five  dollars  a 
day  as  liquidated  damages  for  every  day  such  refusal  or  neglect  con- 
tinues thereafter."  The  case  as  presented  by  the  findings  is  as  fol- 
lows :  — 

The  defendant  is  a  corporation  engaged  in  supplying  the  city  of  Sac- 
ramento with  gas,  and  the  plaintiff  is  an  occupant  of  premises  within 
a  hundred  feet  of  one  of  its  mains.  September  22,  1898,  the  plaintiff 
served  on  the  defendant  a  written  notice,  which  (omitting  date,  address, 
and  signature)  was  as  follows :  "  You  will  please  immediately  supply 
me  with  gas  for  the  premises  occupied  by  me,"  &c.  (describing  them). 
The  defendant,  in  repl}-,  within  ten  days  thereafter,  "  notified  plaintiff 
that  it  would  supply  plaintiff  with  gas  for  said  building  and  premises, 
if  plaintiff  would  furnish  a  meter,  or  agree  to  pay  defendant  fifty  cents 
per  month  as  rent  for  a  meter,"  and  "  plaintiff  refused  to  furnish  a 
meter,  or  to  pay  said  rent  to  the  defendant."  The  rent  demanded 
was  found  by  the  court  to  be  "  fair  and  equitable,"  representing  the 
monthly  cost  of  the  meter  to  the  defendant,  for  care,  labor,  interest  on 
investment,  &c.  But  it  is  found  that  the  defendant  had  no  rule  re- 
quiring payment  of  rent  for  meters,  nor  did  it  charge  its  other  cus- 
tomers therefor.  The  defendant,  it  seems,  had,  prior  to  September  8, 
1898,  been  supplying  plaintiff  with  gas ;  but  the  plaintiff,  during  the 
3'ear  preceding  that  date,  had  used  electrical  lights  mainly  and  almost 
exclusivelj',  and  the  total  amount  of  gas  used  on  the  premises  amounted 
only  to  the  value  of  $1.75;  and  the  defendant,  on  that  date,  had  re- 
moved the  meter,  thereb}'  depriving  the  plaintiff  of  gas.  It  is  found 
—  in  a  passage  following  the  statement  of  the  above  facts,  and  the 
written  notice  —  that  "said  gas"  was  and  is  necessary  for  the  plain- 
tiffs use  on  the  premises  in  question.     But  —  unless  this  expression  be 

1  Opinion  only  is  printed.  —  Ed. 


SMITH   V.   CAPITAL   GAS   CO,  431 

construed  as  referring  to  the  gas  used  prior  to  September  8,  1898,  —  it 
does  not  appear  how  much  or  what  gas  was  needed. 

There  can  be  no  doubt,  I  think,  of  the  right  of  gas  companies,  ordi- 
narily, to  charge  rents  for  meters.  Civ.  Code,  §  632  ;  Sheward  v. 
Citizens'  Water  Co.,  90  Cal.  641.  But  the  point  is  made  by  the  ap- 
pellant, that,  in  charging  him  with  such  rent,  when  other  consumers 
were  not  required  to  pay  it,  "  the  defendant  arbitrarily  discriminated 
against  the  plaintiff."  But  I  do  not  think  this  is  the  case.  Ordinarily, 
compensation  for  the  meter  is  received  from  the  return  for  the  gas 
consumed.  But  here  the  value  of  the  gas  consumed  during  the  year 
preceding  the  removal  of  the  meter  was  not  equal  to  a  sixth  part  of 
the  annual  expense  of  the  meter.  The  plaintiff's  written  demand  did 
not  specify,  even  in  a  general  way,  the  amount  of  gas  required,  or  even 
that  he  required  more  gas  than  he  had  been  in  the  habit  of  using,  An- 
drews V.  North  River,  &c.  Co.,  51  N.  Y.  Supp.  872  ;  and  the  defendant 
was  quite  justified  in  supposing  that  he  required  no  more.  Code  Civ. 
Proc,  §  1963  ;  1  Greenleaf  on  Evidence,  §  41.  A  "  state  of  mmd 
once  proved  to  exist  [is]  presumed  to  remain  such  until  the  contrary 
appears."  1  Greenleaf  on  Evidence,  §  42.  The  case,  therefore, 
stands  as  though  the  plaintiffs  demand  had  been  simply  for  the  res- 
toration of  the  status  quo  —  i.  e.,  for  the  use  of  the  quantity  of  gas 
he  had  been  using.  The  plaintiff's  case  was  therefore  altogether  ex- 
ceptional, and,  we  may  assume,  unique.  For  there  is  neither  finding 
nor  allegation  that  there  were  any  others  in  the  same  categor}',  and  if 
none,  then  there  was  no  discrimination  ;  and  if  there  were  any  such,  it 
devolved  on  the  plaintiff  to  allege  and  to  prove  it;  for  to  render  one 
liable  for  a  penalty,  every  material  fact  necessary  to  bring  the  case 
within  the  statute  must  be  aflfirmativel}'  shown.  Conly  v.  Cla}',  90  Hun, 
20 ;  Village  of  Hardwick  v.  Vermont  T.  and  T.  Co.,  70  Vt.  180 ;  40 
Atl.  Rep.  169.  The  defendant  was  justified,  then,  in  notifj'ing  the" 
plaintiff  that  he  would  be  charged  with  rent  for  the  meter,  if  supplied 
by  the  company ;  and  the  plaintiff's  refusal  to  agree  to  this  was  its 
suflScient  justification  in  refusing  to  furnish  gas. 

I  advise  that  the  judgment  be  affirmed. 

Gkay,  C,  and  Cooper,  C,  concurred. 

For  the  reasons  given  in  the  foregoing  opinion  the  judgment  is 
affirmed.     McFarland,  J.,  Henshaw,  J.,  Temple,  J. 

Hearing  in  banc  denied. 


432       ATLANTIC   COAST   LINE  KAILROAD   COMPANY   V.   FLORIDA. 


INTERSTATE  COMMERCE  COMMISSION   v.   DELAWARE, 
LACKAWANA  &  WESTERN  RAILWAY  COMPANY. 

CiKCurr  Court  of  the  United  States,  1894. 

[64  Fed.  723.] 

This  was  a  proceeding,  under  section  16  of  the  act  to  regulate  inter- 
state commerce,  by  petition  to  enforce  compliance  with  an  order  of  the 
interstate  commerce  commission  which  directs  that  the  railway  carriers, 
the  respondents,  "  wholly  cease  and  desist  and  thenceforth  abstain 
from  charging,  demanding,  collecting,  or  receiving  any  greater  compen- 
sation for  the  interstate  transportation  of  window  shades,  plain  or  dec- 
orated, mounted  or  unmounted,  when  packed  in  boxes,  than  they  or 
either  of  them  contemporaneousl}'  charge  or  receive  like  service  ren- 
dered in  the  transportation  of  commodities  enumerated  as  third-class 
articles  in  the  classification  of  freight  articles  established  and  put  in 
force  by  them  upon  their  several  lines  of  railroad."  The  cause  was 
heard  upon  the  record  of  the  proceedings  before  the  interstate  com- 
merce commission  at  the  complaint  of  Alanson  S.  Page  and  others, 
doing  business  at  Minetto,  N.  Y.,  under  the  copartnership  name  of 
Minetto  Shade-Cloth  Company,  and  upon  depositions  taken  in  the 
cause. 

Wallace,  C.  J.  The  order  of  the  interstate  commerce  commission 
which  the  court  is  now  asked  to  enforce  prohibits  the  railway  carriers, 
the  parties  respondent,  from  charging  any  greater  compensation  for  the 
transportation  of  window  shades  of  any  description  —  whether  the  cheap 
article,  worth  $3  per  dozen,  or  the  hand-decorated  article,  worth  $10 
per  pair  —  than  the  third-class  rate  charged  for  the  transportation  of  the 
materials  used  in  making  window  shades.  Such  an  order,  in  my  judg- 
ment, ignores  the  element  of  the  value  of  the  service  in  fixing  the 
reasonable  compensation  of  the  carrier,  and  denies  him  an}'  remuner- 
ation for  ad4itional  risk.  I  cannot  regard  it  as  justifiable  upon  prin- 
ciple, and  must  refuse  to  enforce  it.     The  petition  is  dismissed. 


ATLANTIC  COAST  LINE  RAILROAD  COMPANY  v.  FLORIDA. 
Supreme  Court  of  the  United  States,  1906. 

[203  U.  S.  256.] 

Mr.  Justice  Brewkj^ 


ATLANTIC   COAST   LINE    RAILROAD   COMPANY   V.   FLORIDA.       433 

Passing  all  matters  of  a  local  nature,  in  respect  to  which  the  decision 
of  the  state  court  is  final,  the  Federal  question  is  whether  the  order  of 
the  railroad  commission,  sustained  bj-  the  Supreme  Court  of  the  State, 
deprived  the  company  of  its  property  without  due  process  of  law  or  de- 
nied to  it  the  equal  protection  of  the  law.  The  testimony  taken  before 
the  commission  was  not  preserved,  but  by  the  law  of  the  State  the  rates 
established  by  such  commission  are  to  be  taken  in  all  courts  as  prima 
/act«  just  and  reasonable.  Laws  Florida,  1899,  pp.  76,  82,  Chap.  4700, 
Sec.  8.  We  start,  therefore,  with  the  presumption  in  favor  of  the 
order. 

The  testimony  on  the  hearing  of  the  application  in  the  Supreme 
Court  is,  however,  in  the  record.  That  court,  in  the  exercise  of  its 
original  jurisdiction  of  mandamus  cases,  determines  questions  of  fact 
as  well  as  of  law.  State  ex  rel.  v.  County  Commissioners  of  Suwannee 
County,  21  Florida,  1.  "While  it  did  not  make  any  distinct  findings  of 
fact,  yet  its  deductions  from  the  testimony  are  clearly  indicated  by  the 
quotations  from  its  opinion.  If  it  be  said  that  in  the  absence  of  special 
findings  of  fact  it  is  the  dut\'  of  this  court  to  examine  the  testimony 
upon  which  the  judgment  was  entered,  it  is  very  clear  that  there  was  no 
suflScient  evidence  presented  to  that  court  to  justify  a  refusal  to  enforce 
the  order  of  the  railroad  commission. 

And  here  we  face  this  situation :  The  order  of  the  commission  was 
not  operative  upon  all  local  rates  but  only  fixed  the  rate  on  a  single 
article,  to  wit,  phosphate.  There  is  no  evidence  of  the  amount  of  phos- 
phates carried  locally ;  neither  is  it  shown  how  much  a  change  in  the 
rate  of  carrying  them  will  affect  the  income,  nor  how  much  the  rate 
fixed  by  the  railroads  for  carrying  phosphate  has  been  changed  b}'  the 
order  of  the  commission.  There  is  testimony  tending  to  show  the 
gross  income  from  all  local  freights  and  the  value  of  the  railroad  prop- 
erty*, and  also  certain  difficulties  in  the  way  of  transporting  phosphates 
owing  to  the  lack  of  facilities  at  the  terminals.  But  there  is  nothing 
from  which  we  can  determine  the  cost  of  such  transportation.  We  are 
aware  of  the  difficulty  which  attends  proof  of  the  cost  of  transporting  a 
single  article,  and  in  order  to  determine  the  reasonableness  of  a  rate 
prescribed  it  may  sometimes  be  necessary  to  accept  as  a  basis  the  aver- 
age rate  of  all  transportation  per  ton  per  mile.  We  shall  not  attempt 
to  indicate  to  what  extent  or  in  what  cases  the  inquirj'  must  be  special 
and  limited.  It  is  enough  for  the  present  to  hold  that  there  is  in  the 
record  nothing  from  which  a  reasonable  deduction  can  be  made  as  to 
the  cost  of  transportation,  the  amounts  of  phosphates  transported,  or  the 
effect  which  the  rate  established  by  the  commission  will  have  upon 
the  income.  Under  these  circumstances  it  is  impossible  to  hold  that 
there  was  error  in  the  conclusions  reached  by  the  Supreme  Court  of  the 
State  of  Florida,  and  its  judgment  is  Affirmed. 

28 


434       CANADA,   ETC.   RAILWAY   CO.   V.   INTEUNATIONAL   BRIDGE   CO. 


CANADA    SOUTHERN  RAILWAY  CO.   v.    INTERNATIONAL 

BRIDGE  CO. 

Privy  Council,  1883. 

[8  App.  Cas.  723.1] 

Br  the  decree  in  the  first  appeal  it  was  declared  that  the  respondent 
International  Bridge  Company  was  entitled  to  certain  tolls  claimed  by 
it  from  the  appellants  for  the  use  by  them  of  the  respondent's  bridge, 
and  consequential  relief. 

The  appellant  is  a  corporation  under  the  laws  of  the  Dominion  of 
Canada.  Its  railway  is  adjacent  to  the  Canadian  terminus  of  the 
International  Bridge  crossing  the  River  Niagara.  It  also  works  a  line 
of  railway  from  such  terminus  to  Lake  Ontario.  The  International 
Bridge  has  one  of  its  termini  in  the  Province  of  Ontario  and  the  otlier 
in  the  State  of  New  York.  The  bridge  and  approaches  are  owned  and 
maintained  b}'  the  International  Bridge  Company,  which  is  incorpo- 
rated under  the  laws  of  the  Dominion  of  Canada  and  also  under  the 
laws  of  the  State  of  New  York,  and  an  agreement  made  thereunder : 
see  an  Act  of  the  State  of  New  York  passed  on  the  17th  of  April,  1857, 
intituled  "  An  Act  to  incorporate  the  International  Bridge  Company'," 
and  an  Act  of  the  Legislature  of  the  former  province  of  Canada,  20 
Vict.  c.  227.  See  further  an  Act  of  the  State  of  New  York,  passed 
May  4,  1869,  and  Canadian  Act,  32  &  33  Vict.  c.  65,  in  virtue  whereof 
an  agreement  or  act  of  consolidation,  dated  the  18th  of  May,  1870, 
was  entered  into  from  which  the  International  Bridge  Compan}'  derived 
its  origin. 

The  questions  decided  in  this  appeal  are,  first,  as  to  the  construction 
of  the  Acts  of  the  Canadian  Legislature,  viz.,  20  Vict  c.  227,  sects.  14, 
16,  and  22  Vict  c.  124  (which  amended  the  former  act),  sect.  2,  as  to 
the  right  to  demand  tolls  ;  second,  whether  the  tolls  are  reasonable  or 
are  shown  to  be  unreasonable. 

The  Lort>  Chancellor  (Earl  of  Selbourne).  ...  It  certainly 
appears  to  their  Lordships  that  the  principle  must  be,  when  reasonable- 
ness comes  in  question,  not  what  profit  it  may  be  reasonable  for  a  com- 
pan}'  to  make,  but  what  it  is  reasonable  to  charge  to  the  person  who 
is  charged.  That  is  the  only  thing  he  is  concerned  with.  They  do  not 
say  that  the  case  may  not  be  imagined  of  the  results  to  a  company 
being  so  enormously  disproportionate  to  the  monej'  laid  out  upon  the 
undertaking  as  to  make  that  of  itself  possibly'  some  evidence  that  the 
charge  is  unreasonable,  with  reference  to  the  person  against  whom  it 
is  charged.  But  that  is  merely  imaginary.  Here  we  have  got  a  per- 
fectly reasonable  scale  of  charges  in  everj'thing  which  is  to  be  re- 
garded as  material  to  the  person  against  whom  the  charge  is  made. 

1  This  case  is  abridged.  —  Ed. 


,         COTTING  V.   GODDARD.  435 

One  of  their  Lordships  asked  counsel  at  the  bar  to  point  out  which  of 
these  charges  were  unreasonable.  It  was  not  found  possible  to  do  so. 
In  point  of  fact,  every  one  of  them  seems  to  be,  when  examined  with 
reference  to  the  service  rendered  and  the  benefit  to  the  person  receiving 
that  service,  perfectly  unexceptionable,  according  to  an}-  standard  of 
reasonableness  which  can  be  suggested.  That  being  so,  it  seems  to 
their  Lordships  that  it  would  be  a  very  extraordinary  thing  indeed, 
unless  the  Legislature  had  expressly  said  so,  to  hold  that  the  persons 
using  the  bridge  could  claim  a  right  to  take  the  whole  accounts  of  the 
^company,  to  dissect  their  capital  account,  and  to  dissect  their  income 
account,  to  allow  this  item  and  disallow  that,  and,  after  manipulating 
the  accounts  in  their  own  way,  to  ask  a  court  to  say  that  the  persons 
who  have  projected  such  an  undertaking  as  this,  who  have  encountered 
all  the  original  risks  of  executing  it,  who  are  still  subject  to  the  risks 
which  from  natural  and  other  causes  every  such  undertaking  is  subject 
to,  and  who  may  possibly,  as  in  the  case  alluded  to  by  the  learned 
judge  in  the  court  below,  the  case  of  the  Tay  Bridge,  have  the  whole 
thing  swept  away  in  a  moment,  are  to  be  regai'ded  as  making  unreason- 
able charges,  not  because  it  is  otherwise  than  fair  for  the  railway  com- 
pany using  the  bridge  to  pay  those  charges,  but  because  the  bridge 
company  gets  a  dividend  which  is  alleged  to  amount,  at  the  utmost, 
to  fifteen  per  cent.  Their  Lordships  can  hardly  characterize  that  argu- 
ment as  anything  less  than  preposterous. 

Their  Lordships  will,  therefore,  humbly  advise  Her  Majesty  that  the 
judgment  of  the  Court  of  Appeal  of  the  Province  of  Ontario  should  be 
afiSrmed,  and  both  these  appeals  dismissed  with  costs. 


COTTING  V.   GODDARD. 
Supreme  Court  of  the  United  States,   1901. 

[22  S.  C.  Rep.  30.1] 

Appeal  from  a  decree  of  the  Circuit  Court  of  the  United  States  for 
the  District  of  Kansas  dismissing  a  complaint  in  a  suit  to  restrain  the 
enforcement  of  a  statute.  Meversed. 

Statement  by  Mr.  Justice  Brewer  : 

In  March,  1897,  Charles  U.  Cotting,  a  citizen  of  the  State  of  Massa- 
chusetts, filed  in  the  Circuit  Court  of  the  United  States  for  the  district 
of  Kansas,  a  bill  of  complaint  against  the  Kansas  City  Stock-Yards 
Company,  a  corporation  of  the  State  of  Kansas,  and  certain  officers 
of  that  company,  and  Louis  C.  Boyle,  Attorney-General  of  the  State 
of  Kansas.     A  few  days  later  Francis  Lee  Higginson,  a  citizen  of  the 

^  This  case  is  abridged.  —  Ed. 


436  COTTING  V.   GODDARD. 

State  of  Massachusetts,  filed  a  bill  of  complaint  in  the  same  court  and 
against  the  same  parties. 

These  suits  were  subsequently  ordered  by  the  court  to  be  consoli- 
dated, and  were  thereafter  proceeded  in  as  one. 

Tiie  plaintiffs  respectively  alleged  that  they  were  stockholders  of  the 
Kansas  City  Stock- Yards  Company,  and  that  the  suits  were  brought  in 
their  own  behalf  and  that  of  other  stockholders  having  a  like  interest, 
who  might  thereafter  join  in  the  prosecution  thereof.  The  main  pur- 
pose of  the  suits  was  to  have  declared  invalid  a  certain  act  of  the 
Legislature  of  the  State  of  Kansas  approved  March  3,  1897,  entitled 
"  An  Act  Defining  What  shall  Constitute  Public  Stock-Yards,  Defining 
the  Duties  of  the  Person  or  Persons  Operating  the  Same,  and  Regulat- 
ing All  Charges  thereof,  and  Removing  Restrictions  in  the  Trade  of 
Dead  Animals,  and  Providing  Penalties  for  Violations  of  This  Act." 

A  temporary  restraining  order  was  granted,  and  subsequently  a 
motion  for  a  preliminary  injunction  was  made.  Pending  that  motion 
the  court  appointed  a  special  master,  with  power  to  take  testimony 
and  report  the  same,  with  his  findings,  as  to  all  matters  and  things  in 
issue  upon  the  hearing  of  the  preliminary  injunction  prayed  for.  79 
Fed.  679.  On  August  24,  1897,  the  special  master  filed  his  report. 
On  October  4,  1897,  the  motion  for  a  preliminary  injunction  was  heard 
on  affidavits,  the  master's  report,  exceptions  thereto  on  behalf  of  both 
parties,  and  arguments  of  counsel.  The  motion  was  refused  and  the 
restraining  order,  which  had  remained  in  force  in  the  meantime,  was 
set  aside.     82  Fed.  839. 

A  stipulation  was  thereupon  entered  into  that  the  defendants  should 
forthwith  file  their  answers  to  the  bills  ;  that  replications  thereto  should 
be  immediately  filed ;  and  that  the  cases  thus  put  in  issue  should  be 
beard  on  final  hearing,  upon  the  pleadings,  proofs,  master's  report,  and 
exhibits,  without  further  testimony  from  either  part}. 

On  October  28,  1897,  after  argument,  the  court  dismissed  the  bills 
of  complaint     82  Fed.  850. 

Mr.  Justice  Brewer.  ...  In  this  case,  as  heretofore  indicated,  a 
volume  of  testimony  has  been  taken,  mainly  upon  the  question  of  the 
cost  and  value  of  the  stock-yards,  and  the  effect  upon  the  income  of 
the  company  by  reason  of  the  proposed  reduction.  This  testimony  was 
taken  before  a  master,  with  instructions  to  report  the  cost  of  the  stock- 
yards, the  present  value  of  the  propert}',  the  receipts  and  expenditures 
thereof,  the  manner  of  operation,  and  such  other  matters  as  might  be 
pertinent  for  a  determination  of  the  case.  Stated  in  general  terms,  his 
findings  were  that  the  value  of  the  property  used  for  stock-yard  pur- 
poses, including  the  value  of  certain  supplies  of  feed  and  materials 
which  were  on  hand  December  31,  1896,  is  $5,388,003.25;  that  the 
gross  income  realized  by  the  stock-yards  compan}-  during  the  year 
1896,  which  was  taken  as  representing  its  average  gross  income,  was 
$1,012,271.22.  The  total  expenditures  of  the  company  for  all  purposes 
during  the  same  period  amounted  to  $535,297.14,  —  thus  indicating  a 


COTTING   V.   GODDARD.  437 

net  income  for  the  year  of  $476,974.08.  The  court,  however,  increased 
the  estimate  of  the  net  income  by  adding  to  the  expenditures  the  sura 
of  $13,584,65,  expended  in  repairs  and  construction,  thus  placing  the 
net  income  at  the  amount  of  $590,558.73.  If  the  rates  prescribed  by 
the  Kansas  statute  for  yarding  and  feeding  stock  had  been  in  force  dur- 
ing the  3'ear  1896  the  income  of  the  stock-yards  company  would 
have  been  reduced  that  year  $300,651.77,  leaving  a  net  income  of 
$289,916.96.  This  would  have  yielded  a  return  of  5.3  per  cent  on  the 
value  of  property  used  for  stock-yard  purposes,  as  fixed  by  the  master. 
Or  if  the  capital  stock  be  taken  after  deducting  therefrom  such  portion 
thereof  which  represents  property  not  used  for  stock-yard  purposes,  the 
return  would  be  4.6  per  cent. 

Counsel  for  appellants  challenge  the  correctness  of  these  findings,  and 
seek  to  show  by  a  review  of  the  testimony  that  no  such  per  cent  of  re- 
turn on  the  real  value  of  the  investment  would  be  received  by  the  com- 
pany in  case  the  proposed  reduction  is  put  into  effect.  But,  without 
stopping  to  enter  into  the  inquiry  suggested  b}-  their  contention,  it  is 
enough  for  our  present  purpose  to  state  in  general  the  conclusions  of 
the  master  and  the  court. 

On  the  other  hand,  it  is  shown  by  the  findings,  approved  bj-  the 
court,  that  the  prices  charged  in  these  stock-yards  are  no  higher,  and 
in  some  respects  lower,  than  those  chai'ged  in  any  other  stock-3ards  in 
the  country,  and  finding  37  is  — 

*'  The  other  stock-^ards  heretofore  enumerated  are  operated  gen- 
erally in  the  same  manner  as  those  at  Kansas  Cit}-,  and  there  is  and  was 
for  a  long  time  prior  to  March  12,  1897,  active  and  growing  compe- 
tition among  their  owners  to  attract  and  secure  to  each  the  shipment 
of  live-stock  from  competitive  territories.  Kansas  City  is  the  greatest 
stocker  and  feeder  market  in  the  world,  and  while  Chicago  exceeds  it 
as  a  general  market,  yet,  because  of  the  expense  of  transportation  from 
Kansas  City  there,  and  the  loss  in  weight  by  shrinkage  during  such 
transportation,  the  live-stock  shipped  to  and  sold  at  Kansas  City  in 
1896  realized  for  its  owners  more  than  $1,500,000  in  excess  of  the 
amount  which  would  have  been  realized  if  forwarded  from  Kansas  City 
to  and  sold  on  the  Chicago  market." 

Now,  in  the  light  of  these  decisions  and  facts,  it  is  insisted  that  the 
same  rule  as  to  the  limit  of  judicial  interference  must  apply  in  cases  in 
which  a  public  service  is  distinctly  intended  and  rendered  and  in  those 
in  which,  without  any  intent  of  public  service,  the  owners  have  placed 
their  property  in  such  a  position  that  the  public  has  an  interest  in  its 
use.  Obviouslj'  there  is  a  difference  in  the  conditions  of  these  cases. 
In  the  one  the  owner  has  intentionally  devoted  his  property  to  the  dis- 
charge of  a  public  service.  In  the  other  he  has  placed  his  propert}'  in 
such  a  position  that,  willingly  or  unwillingly,  the  public  has  acquired 
an  interest  in  its  use.  In  the  one  he  deliberatel}'  undertakes  to  do  that 
which  is  a  proper  work  for  the  State.  In  the  other,  in  pursuit  of  merely 
private  gain,  he  has  placed  his  property  in  such  a  position  that  the 


438  COTTING  V.   GODDARD. 

public  has  become  interested  in  its  use.  In  the  one  it  may  be  said  that 
he  voluntarily  accepts  all  the  conditions  of  public  service  which  attach 
to  like  service  performed  by  tbe  State  itself;  in  the  other,  that  he  sub- 
mits to  only  those  necessary  interferences  and  regulations  which  the 
public  interests  require.  In  the  one  he  expresses  his  willingness  to  do 
the  work  of  the  State,  aware  that  the  State  in  the  discharge  of  its  pub- 
lic duties  is  not  guided  solely  by  a  question  of  profit.  It  ma}'  rightfully 
determine  that  the  particular  service  is  of  such  importance  to  the  public 
that  it  ma}'  be  conducted  at  a  pecuniary  loss,  having  in  view  a  larger 
general  interest.  At  any  rate,  it  does  not  perform  its  services  with 
the  single  idea  of  profit.  Its  thought  is  the  general  public  welfare. 
If  in  such  a  case  an  individual  is  willing  to  undertake  the  work  of  the 
State,  may  it  not  be  urged  that  he  in  a  measure  subjects  himself  to  the 
same  rules  of  action,  and  that  if  the  body  which  expresses  the  judgment 
of  the  State  believes  that  the  particular  services  should  be  rendered 
without  profit  he  is  not  at  liberty  to  complain  ?  While  we  have  said 
again  and  again  that  one  volunteering  to  do  such  services  cannot  be 
compelled  to  expose  his  property-  to  confiscation,  that  he  cannot  be  com- 
pelled to  submit  its  use  to  such  rates  as  do  not  pay  the  expenses  of  the 
work,  and  therefore  create  a  constantly  increasing  debt  which  ultimately 
works  its  appropriation,  still  is  there  not  force  in  the  suggestion  that  as 
the  State  may  do  the  work  without  profit,  if  he  voluntarily  undertakes 
to  act  for  the  State  he  must  submit  to  a  like  determination  as  to  tbe 
paramount  interests  of  the  public  ? 

Again,  wherever  a  purely  public  use  is  contemplated,  the  State  may 
and  generally  does  bestow  upon  the  party  intending  such  use  some  of 
its  governmental  powers.  It  grants  the  right  of  eminent  domain,  by 
which  property  can  be  taken,  and  taken,  not  at  the  price  fixed  by  the 
owner,  but  at  the  market  value.  It  thus  enables  him  to  exercise 
the  powers  of  the  State,  and,  exercising  those  powers  and  doing 
the  work  of  the  State,  is  it  wholly  unfair  to  rule  that  he  must  submit 
to  the  same  conditions  which  the  State  ma}'  place  upon  its  own  exercise 
of  the  same  powers  and  the  doing  of  the  same  work  ?  It  is  unneces- 
sary in  this  case  to  determine  this  question.  We  simply  notice  the 
arguments  which  are  claimed  to  justify  a  difference  in  the  rule  as  to 
property  devoted  to  public  uses  from  that  in  respect  to  property  used 
solely  for  purposes  of  private  gain,  and  which  only  by  virtue  of  the 
conditions  of  its  use  becomes  such  as  the  public  has  an  interest  in. 

In  reference  to  this  latter  class  of  cases,  which  is  alone  the  subject 
of  present  inquiry,  it  must  be  noticed  that  the  individual  is  not  doing 
the  work  of  the  State.  He  is  not  using  his  property  in  the  discharge 
of  a  purely  public  service.  He  acquires  from  the  State  none  of  its 
governmental  powers.  His  business  in  all  matters  of  purchase  and  sale 
is  subject  to  the  ordinary  conditions  of  the  market  and  the  freedom  of 
contract.  He  can  force  no  one  to  sell  to  him,  he  cannot  prescribe  the 
price  which  he  shall  pay.  He  must  deal  in  the  market  as  others  deal, 
buying  only  when  he  can  buy  and  at  the  price  at  which  the  owner  is 


COTTING   V.   GODDARD.  439 

willing  to  sell,  and  selling  only  when  he  can  find  a  purchaser  and  at 
the  price  which  the  latter  is  willing  to  pay.  If  under  such  circum- 
stances he  is  bound  by  all  the  conditions  of  ordinarj'  mercantile  transac- 
tions he  may  justly  claim  some  of  the  privileges  which  attach  to  those 
engaged  in  such  transactions.  And  while  b}'  the  decisions  heretofore 
referred  to  he  cannot  claim  immunity  from  all  State  regulation  he  may 
rightfuU}'  sa}'  that  such  regulation  shall  not  operate  to  deprive  him  of 
the  ordinary  privileges  of  others  engaged  in  mercantile  business. 

Pursuing  this  thought,  we  add  that  the  State's  regulation  of  his 
charges  is  not  to  be  measured  by  the  aggregate  of  his  profits,  determined 
b^'  the  volume  of  business,  but  by  the  question  whether  any  particular 
charge  to  an  individual  dealing  with  him  is,  considering  the  service 
rendered,  an  unreasonable  exaction.  In  other  words,  if  he  has  a 
thousand  transactions  a  day,  and  his  charges  in  each  are  but  a  reason- 
able compensation  for  the  benefit  received  by  the  party  dealing  with 
him,  such  charges  do  not  become  unreasonable  because  by  reason  of 
the  multitude  the  aggregate  of  his  profits  is  large.  The  question  is  not 
how  much  he  makes  out  of  his  volume  of  business,  but  whether  in  each 
particular  transaction  the  charge  is  an  unreasonable  exaction  for  the 
services  rendered.  He  has  a  right  to  do  business.  He  has  a  right  to 
charge  for  each  separate  service  that  which  is  reasonable  compensation 
therefor,  and  the  Legislature  may  not  deny  him  such  reasonable  com- 
pensation, and  ma}'  not  interfere  simply  because  out  of  the  multitude 
of  his  transactions  the  amount  of  his  profits  is  large.  Such  was  the 
rule  of  the  common  law,  even  in.  respect  to  those  engaged  in  a  quasi- 
public  service,  independent  of  legislative  action.  In  any  action  to  re- 
cover for  an  excessive  charge,  prior  to  all  legislative  action,  who  ever 
knew  of  an  inquiry  as  to  the  amount  of  the  total  profits  of  the  party 
making  the  charge  ?  "Was  not  the  inquiry  alwaj's  limited  to  the  par- 
ticular charge,  and  whether  that  charge  was  an  unreasonable  exaction 
for  the  services  rendered  ? 

Again,  the  findings  show  that  the  gross  receipts  for  the  year  1896 
were  $1,012,271.22  ;  that  the  total  number  of  stock  received  during  the 
same  time  was  5,471,246.  In  other  words,  the  charge  per  capita  was 
eighteen  cents  and  five  mills.  So  that  one  shipping  to  the  stock-yards 
one  hundred  head  of  stock  was  charged  $18.50  for  the  privileges  of  the 
yard,  the  attendance  of  the  employees,  and  the  feed  furnished.  While 
from  these  figures  alone  we  might  not  say  that  the  charges  were  reason- 
able or  unreasonable,  we  cannot  but  be  impressed  with  the  fact  that 
the  smallness  of  the  charge  suggests  no  extortion.  Further,  as  here- 
tofore noticed,  the  findings  show  that  the  establishment  of  these  yards 
has  operated  to  secure  to  the  shippers  during  a  single  j^ear  $1 ,500,000 
more  than  they  would  have  realized  in  case  of  their  non-existence  and 
a  consequent  shipment  to  Chicago,  the  other  great  stock  market  of  the 
country. 

"  Another  reason  why  the  classification  should  be  based  upon  the  vol- 
ume of  business  done  is  that  rates  which  are  reasonable  and  proper  and 


44(y  COTTING  V.   GODDARD. 

furnish  a  sufficient  return  upon  the  capita]  invested  can  very  properly 
be  made  lower  and  different  in  a  plant  where  the  volume  of  business 
is  large,  while  in  a  smaller  plant  doing  a  smaller  volume  of  business 
higher  rates  may  be  necessary  in  order  to  afford  adequate  returns." 

If  the  average  daily  receipts  of  a  stock-yard  are  more  than  one  hun- 
dred head  of  cattle,  or  more  than  three  hundred  head  of  hogs,  or  more 
than  three  hundred  head  of  sheep,  it  comes  within  the  purview  of  this 
statute.  If  less  than  the  amount  it  is  free  from  legislative  restriction. 
No  matter  what  yards  it  ma}'  touch  to-day  or  in  the  near  or  far  future, 
the  express  declaration  of  the  statute  is  that  stock-yards  doing  a  busi- 
ness in  excess  of  a  certain  amount  of  stock  shall  be  subjected  to  this 
regulation,  and  that  all  others  doing  less  business  shall  be  free  from  its 
provisions.  Clearly  the  classification  is  based  solely  on  the  amount  of 
business  done,  and  without  any  reference  to  the  character  or  value  of 
the  services  rendered.  Kindred  legislation  would  be  found  in  a  stat- 
ute like  this  :  requiring  a  railroad  company  hauling  ten  tons  or  over  of 
freight  a  da}'  to  charge  only  a  certain  sum  per  ton,  leaving  to  other 
railroad  companies  hauling  a  less  amount  of  freight  the  right  to  make 
any  reasonable  charge ;  or,  one  requiring  a  railroad  company  hauling 
one  hundred  or  more  passengers  a  day  to  charge  only  a  specified 
amount  per  mile  for  each,  leaving  those  hauling  ninety -nine  or  less  to 
make  any  charge  which  would  be  reasonable  for  the  service ;  or  if  we 
may  indulge  in  the  supposition  that  the  Legislature  has  a  right  to  inter- 
fere with  the  freedom  of  private  contracts,  one  which  would  forbid  a 
dealer  in  shoes  and  selling  more  than  ten  pairs  a  day  from  charging 
more  than  a  certain  price  per  pair,  leaving  the  others  selling  a  less 
number  to  charge  that  which  they  deemed  reasonable ;  or  forbidding 
farmers  selling  more  than  ten  bushels  of  wheat  to  charge  above  a  spec- 
ified sum  per  bushel,  leaving  to  those  selling  a  less  amount  the  privi- 
lege of  charging  and  collecting  whatever  they  and  the  buyers  may  see 
fit  to  agree  upon.  In  short,  we  come  back  to  the  thought  that  the 
classification  is  one  not  based  upon  the  character  or  value  of  the  ser- 
vices rendered,  but  simply  on  the  amount  of  the  business  which  the 
party  does,  and  upon  the  theory  that  although  he  makes  a  charge  which 
everybody  else  in  the  same  business  makes,  and  which  is  perfectly  rea- 
sonable so  far  as  the  value  of  the  services  rendered  to  the  individuals 
seeking  them  is  concerned,  yet  if  by  the  aggregation  of  business  he  is 
enabled  to  make  large  profits  his  charges  may  be  cut  down. 

Heversed. 


INTERSTATE  COMMERCE  COM.   V.   CHICAGO,  ETC.   RY.   CO.      441 


INTERSTATE  COMMERCE  COMMISSION  v.  CHICAGO 
GREAT  WESTERN  RAILWAY  COMPANY. 

Circuit  Court  of  Appeals,  1905. 

[141  Fed.  1004.1] 

Bethea,  C.  J. 

A  careful  examination  of  the  opinions  of  that  court  (as  well  as  the 
evidence  taken  in  these  cases)  shows  that  there  are  a  great  many 
factors  and  circumstances  to  be  considered  in  fixing  a  rate.  Noyes, 
Am.  R.  R.  Rates,  pp.  61  ef  seq.,  85-109.  Among  other  things: 
(1)  The  value  of  the  service  to  the  shipper,  including  the  value  of  the 
goods  and  the  profit  he  could  make  out  of  them  by  shipment.  This  is 
considered  an  ideal  method,  when  not  interfered  with  by  competition 
or  other  factors.  It  includes  the  theory  so  strenuously  contended  for 
by  petitioners,  the  commission,  and  its  attorneys,  of  making  the  fin- 
ished product  carry  a  higher  rate  than  the  raw  material.  This  method 
is  considered  practical,  and  is  based  on  an  idea  similar  to  taxation. 
Interstate  Commerce  Commission  v.  B.  &  O.  Ry.  Co.  (C.  C.)  43  Fed. 
37,  53;  Noyes,  Am.  R.  R.  Rates,  53.  (2)  The  cost  of  service  to  the 
carrier  would  be  an  ideal  theory,  but  is  not  practical.  Such  cost  can 
be  reached  approximately,  but  not  accurately  enough  to  make  this 
factor  controlling.  It  is  worthy  of  consideration,  however.  Inter- 
state Commerce  Commission  v.  B.  &  O.  Ry.  Co.,  supra;  Ransome  v. 
Eastern  Railway  Company  (1857)  1  C.  B.  437,  26  L.  J.  C.  P.  91; 
Judson  on  Interstate  Commerce,  §§  148,  149;  Western  Union  Tele- 
graph Co.  V.  Call  Publishing  Co.,  181  U.  S.  92,  21  Sup.  Ct.  561,  45 
L.  Ed.  765;  Interstate  Commerce  Commission  v.  Detroit,  Grand 
Haven  &  Milwaukee  Railroad  Co.,  167  U.  S.  633,  17  Sup.  Ct.  986, 
42  L.  Ed.  306.    (3)  Weight,  bulk,  and  convenience  of  transportation. 

(4)  The  amount  of  the  product  or  the  commodity  in  the  hands  of  a 
few  persons  to  ship  or  compete  for,  recognizing  the  principl'e  of  selling 
cheaper  at  wholesale  than  at  retail.  Interstate  Commerce  Commis- 
sion V.  B.  &  O.  Ry.  Co.,  145  U.  S.  263,  12  Sup.  Ct.  844,  36  L.  Ed.  699. 

(5)  General  public  good,  including  good  to  the  shipper,  the  railroad 
company  and  the  different  localities.  Interstate  Commerce  Commis- 
sion V.  B.  &  O.  Ry.  Co.,  145  U,  S.  263,  12  Sup.  Ct.  844,  36  L.  Ed.  699. 

(6)  Competition,  which  the  authorities,  as  well  as  the  experts,  in  their 
testimony  in  these  cases,  recognize  as  a  very  important  factor.  Pick- 
ering Phipps  V.  London  &  Northwestern  Railway  Company,  2  Q.  B.  D. 
(1892)  229  (this  case  construes  section  2  of  the  English  Act  of  1854, 

*  An  extract  only  is  printed.  —  Ed. 


442      INTERSTATE  COMMERCE  COM.   V.   CHICAGO,   ETC.   RY.   CO. 

which  is  almost  like  section  3  of  our  Interstate  Commerce  Act) ;  Inter- 
state Commerce  Commission  v.  B.  &  O.  Ry.  Co.,  supra;  Cincinnati, 
'New  Orleans  &  Texas  Pacific  Railway  Company  v.  Interstate  Com- 
merce Commission,  162  U.  S.  184,  16  Sup.  Ct.  700,  40  L.  Ed.  935; 
Interstate  Commerce  Commission  v.  Alabama  Midland  Railway  Com- 
pany, 168  U.  S.  144,  18  Sup.  Ct.  45,  42  L.  Ed.  414;  Louisville  &  Nash- 
\'ille  Raihoad  Co.  v.  Behhner,  175  U.  S.  648,  20  Sup.  Ct.  209,  44  L. 
Ed.  309;  East  Tennessee,  Virginia  &  Georgia  Railway  Co.  v.  Inter- 
state Commerce  Commiss  on,  181  U.  S.  1,  21  Sup.  Ct.  516,  45  L.  Ed. 
719;  Texas  &  Pacific  Railway  Co.  v.  Interstate  Commerce  Commis- 
sion, 162  U.  S.  197,  16  Sup.  Ct.  666,  40  L.  Ed.  940;  Interstate  Com- 
merce Commission  v.  Louisville  &  Nashville  Railroad  Co.,  190  U.  S. 
273,  23  Sup.  Ct.  687,  47  L.  Ed.  1047.  The  Supreme  Court  has  also 
held  that  it  may  be  presumed  that  Congress,  in  adopting  the  language 
of  the  English  act,  had  in  mind  the  constructions  given  to  the  words 
"undue  preference"  by  the  courts  of  England.  Interstate  Commerce 
Commission  v.  B.  &  O.  Ry.  Co.,  145  U.  S.  284,  12  Sup.  Ct.  844,  36 
L.  Ed.  699. 

None  of  the  above  factors  alone  are  considered  necessarily  control- 
ling by  the  authorities.  Neither  are  they  all  controlling  as  a  matter 
of  law.  It  is  a  question  of  fact  to  be  decided  by  the  proper  tribunal 
in  each  case  as  to  what  is  controlling.  In  every  case  the  Supreme 
Court  has  held  that  competition  may  be  controlling.  In  only  one  case 
has  it,  as  a  matter  of  fact,  been  held  not  to  be  a  defense. 


KANSAS  CITY  SOUTHERN   RAILWAY  CO.   V.    UNITED   STATES.       443 


KANSAS  CITY  SOUTHERN  RAILWAY  COMPANY  t, 
UNITED  STATES. 

Supreme  Court  of  the  United  States,  1913. 

[231  U,  S.  423.1] 

Mr.  Justice  Pitney  delivered  the  opinion  of  the  court. 

It  is  further  insisted  that  even  the  theory  upon  which  the  account- 
ing regulations  rest  does  not,  when  analyzed,  justify  a  charge  of  aban- 
doned property  to  operating  expenses,  but  at  most  a  charge  to  profit 
and  loss.  The  suggestion  apparently  has  force;  but,  upon  considera- 
tion, we  are  imable  to  see  that  it  furnishes  ground  for  judicial  inter- 
ference with  the  course  pursued  by  the  Commission.  Except  for  the 
contention  (already  disposed  of)  that  the  value  of  the  abandoned 
parcels  should  be  permanently  carried  in  the  property  account  as 
part  of  the  cost  of  progress,  it  is  and  must  be  conceded  that  sooner 
or  later  it  must  be  charged  against  the  operating  revenue,  either 
past  or  future,  if  the  integrity  of  the  property  accounts  is  to  be 
maintained;  and  it  becomes  a  question  of  policy  whether  it  should 
be  charged  in  solido  to  profit  and  loss  (an  account  presumptively 
representative  of  past  accumulations)  or  to  the  operating  accounts 
of  the  present  and  future.  If  abandoned  property  is  not  charged 
off  in  one  way  or  the  other  it  remains  as  a  permanent  inflation  of 
the  property  accounts,  and  tends  to  produce,  directly  or  indirectly, 
a  declaration  of  dividends  out  of  capital.  If  it  be  charged  oflF  to 
the  surplus  account,  it  tends  to  prevent  the  declaration  of  dividends 
based  upon  a  supposed  accumulation  of  past  earnings.  If  charged  to 
operating  expenses  of  the  current  and  future  years,  it  has  a  tendency 
to  prevent  the  declaration  of  dividends  from  current  earnings  until 
the  amount  of  the  depreciation  shall  have  been  made  up  out  of  the 
earnings. 

*  Only  one  point  is  printed.  —  Ed. 


I 


444  OPINION  OF  THE  JUSTICES. 


OPINION  OF  THE  JUSTICES. 
Supreme  Judicial  Court  of  Massachusetts,  1919. 

[231  Masa.  603.'] 

We  are  of  opinion  that  that  act  was  constitutional  and  for  these 
reasons:  The  means  of  transportation  for  people  at  large  is  a  matter 
of  public  interest.  In  earlier  times  turnpikes  and  toll  bridges  in  pri- 
vate ownership  and  management  afforded  facilities  for  travel.  Grad- 
ual'y  these  mostly  have  been  taken  over  by  counties,  cities  and  towns 
and  the  tolls  abolished.  Andover  &  Medford  Turnpike  Corp.  v.  County 
Conunissioners,  18  Pick.  486.  Murray  v.  County  Commissioners,  12 
Met.  455.  Central  Bridge  Corp.  v.  Lowell,  4  Gray,  474;  S.  C.  15  Gray, 
106.  The  ownership  and  operation  of  a  ferry  by  a  municipality  con- 
travenes no  constitutional  limitation.  Attorney  General  v.  Boston, 
123  Mass.  460.  Steam  railroads  in  their  last  analysis  are  highways  for 
the  use  of  the  public.  The  Commonwealth  has  in  several  instances 
lent  its  aid  to  the  construction  of  such  railroads.  See  Kingman, 
petitioner,  153  Mass.  566,  570,  for  references  to  statutes.  Numerous 
special  statutes  and  finally  a  general  law  have  been  enacted  authoriz- 
ing cities  and  towns  to  subscribe  for  stock  of  railroads.  Kittredge  v. 
North  Brookfield,  138  Mass.  286.  Commonwealth  v.  Williamstown, 
156  Mass.  70.  Such  legislation  is  constitutional.  Prince  v.  Crocker, 
166  Mass.  347,  361.  The  Commonwealth  contributed  toward  the 
construction  of  the  Hoosac  Tunnel  and  ultimately  acquired  the  owner- 
ship and  assumed  the  management  of  the  Troy  and  Greenfield  Rail- 
road. Troy  &  Greenfield  Railroad  v.  Commonwealth,  127  Mass.  43. 
Amstein  v.  Gardner,  134  Mass.  4.  Nearly  forty  early  statutes  incor- 
porating street  railways  contained  a  section  whereby  the  municipality 
within  which  such  railway  was  .constructed  might  acquire  its  prop- 
erty. The  construction  of  the  Boston  subway  for  street  railway  pur- 
poses was  held  a  public  use  for  which  money  raised  by  taxation  lawfully 
might  be  expended.  Prince  r.  Crocker,  166  Mass.  347.  The  same  is 
true  of  the  East  Boston  Tunnel.  Browne  v.  Turner,  176  Mass.  9. 
Property  invested  in  street  railways  by  private  investors  has  been  held 
to  become  thereby  affected  with  a  public  interest.  Donham  v.  Public 
Service  Commission,  232  Mass.  309.  It  has  been  decided  in  other 
jurisdictions  that  the  construction,  acquisition  and  operation  of  street 
railways  may  be  made  a  municipal  function. 

*  This  opinion  was  unanimous;  the  full  statement  of  the  proposed  enactments 
submitted  which  prefaces  this  opinion  is  omitted.  —  Ed. 


PENNSYLVANIA  RAILROAD  V.    PHILADELPHIA  COUNTY.         445 


PENNSYLVANIA   RAILROAD   v.   PHILADELPHIA   COUNTY. 
Supreme  Court  of  Pennsylvania,  1907. 

[220  Pa.  St.  110.1] 

Opinion  of  Mr.  Chief  Justice  Mitchell. 

But  independently  of  this,  true  business  principles  require  that  the 
passenger  and  freight  traffic  not  only  may,  but  should  be  separately 
considered.  The  intelligent  business  of  the  world  is  done  in  that  way. 
Every  merchant  and  manufacturer  examines  and  ascertains  the  un- 
profitable branches  of  his  business  with  a  view  to  reducing  or  cutting 
them  off  entirely,  and  there  is  no  reason  why  a  railroad  or  other  cor- 
poration should  not  be  permitted  to  do  the  same  thing  as  long  as  its 
substantial  corporate  duties  under  its  franchise  are  performed.  While 
the  public  has  certain  rights  which  in  case  of  conflict  must  prevail, 
yet  it  must  not  be  forgotten  that  even  so-called  public  service  cor- 
porations are  private  property  organized  and  conducted  for  private 
corporate  profit.  And  unless  necessary  for  the  fulfillment  of  their 
corporate  duties  they  should  not  be  required  to  do  any  part  of  their 
business  in  an  unbusinesslike  way  with  a  resulting  loss.  If  part  is  un- 
profitable it  is  neither  good  business  nor  justice  to  make  it  more  so 
because  the  loss  can  be  offset  by  profit  on  the  rest.  To  concede  that 
principle  would,  as  the  court  below  indicated,  permit  the  legislature 
to  compel  the  carriage  of  passengers  practically  for  nothing  though 
the  inexorable  result  would  be  that  freight  must  pay  inequitable  rates 
that  passenger  travel  may  be  cheap.  The  corporation  is  entitled  to 
make  a  fair  profit  on  every  branch  of  its  business  subject  to  the  limi- 
tation that  its  corporate  duties  must  be  performed  even  though  at  a 
loss.  What  is  a  fair  profit  is,  as  already  said,  a  highly  complicated 
and  difficult  question.  The  learned  court  below  availed  themselves  of 
all  the  best  evidence  that  was  offered  or  shown  to  be  attainable,  con- 
sidered it  with  exemplary  patience  and  care,  and  their  conclusion 
that  the  enforcement  of  the  Act  of  1907  against  the  complainant 
would  do  injustice  to  the  corporators  is  beyond  just  criticism. 

Decree  affirmed. 

*  Only  the  concluding  part  of  the  opinion  is  printed.  —  Ed. 


446  THE  MINNESOTA  RATE  CASES. 


THE  MINNESOTA  RATE  CASES. 
Supreme  Court  of  the  United  States,  1912. 

[230  U.  S.  352.»] 

Mr.  Justice  Hughes  delivered  the  opinion  of  the  court. 

The  interblending  of  operations  in  the  conduct  of  interstate  and 
local  business  by  interstate  carriers  is  strongly  pressed  upon  our  at- 
tention. It  is  urged  that  the  same  right-of-way,  terminals,  rails, 
bridges,  and  st;ations  are  provided  for  both  classes  of  traffic;  that  the 
proportion  of  each  sort  of  business  varies  from  year  to  year  and,  in- 
deed; from  day  to  day;  that  no  division  of  the  plant,  no  apportionment 
of  it  between  interstate  and  local  traffic,  can  be  made  to-day,  which 
will  hold  to-morrow;  that  terminals,  facilities  and  connections  in  one 
State  aid  the  carrier's  entire  business  and  are  an  element  of  value  with 
respect  to  the  whole  property  and  the  business  in  other  States;  that 
securities  are  issued  against  the  entire  line  of  the  carrier  and  cannot  be 
divided  by  States;  that  tariffs  should  be  made  with  a  view  to  all  the 
traffic  of  the  road  and  should  be  fair  as  between  through  and  short- 
haul  business;  and  that,  in  substance,  no  regulation  of  rates  can  be 
just,  which  does  not  take  into  consideration  the  whole  field  of  the  car- 
rier's operations,  irrespective  of  state  lines. 

But  these  considerations  are  for  the  practical  judgment  of  Congress 
in  determining  the  extent  of  the  regulation  necessary  under  existing 
conditions  of  transportation  to  conserve  and  promote  the  interests  of 
interstate  commerce.  If  the  situation  has  become  such,  by  reason  of 
the  interblending  of  the  interstate  and  intrastate  operations  of  inter- 
state carriers,  that  adequate  regulation  of  their  interstate  rates  can- 
not be  maintained  without  imposing  requirements  with  respect  to 
their  intrastate  rates  which  substantially  affect  the  former,  it  is  for 
Congress  to  determine,  within  the  limits  of  its  constitutional  authority 
over  interstate  commerce  and  its  instruments  the  measure  of  the  regu- 
lation it  should  supply.  It  is  the  function  of  this  court  to  interpret  and 
apply  the  law  already  enacted,  but  not  under  the  guise  of  construction 
to  provide  a  more  comprehensive  scheme  of  regulation  than  Congress 
has  decided  upon.  Nor,  in  the  absence  of  Federal  action,  may  we  deny 
effect  to  the  laws  of  the  State  enacted  within  the  field  which  it  is  en- 
titled to  occupy  until  its  authority  is  limited  through  the  exertion  by 
Congress  of  its  paramount  Constitutional  power. 

*  Only  an  extract  is  printed.  —  Ed. 


GLOUCESTER  WATER  SUPPLY  CO.   V.   GLOUCESTER.  447 


GLOUCESTER  WATER  SUPPLY  CO.  v.   GLOUCESTER. 

Supreme  Court  op  Massachusetts,  1901. 

[179  Mass.  365.1] 

Petition  to  determine  the  value  of  the  petitioner's  water  plant  pur- 
chased by  the  respondent  on  September  24,  1895,  under  St.  1895,  c. 
451,  §  16,  filed  October  29,  1895. 

Commissioners  were  appointed  under  the  provisions  of  the  act,  who 
reported  that  the  value  of  the  plant,  exclusive  of  any  allowance  for  the 
franchise  and  rights  other  than  the  water  rights  of  the  company,  and 
excluding  all  evidence  as  to  the  past  earning  capacity  of  the  company, 
was  $600,500,  and  that  the  petitioner  should  recover  that  amount  with 
interest  from  September  24,  1895,  less  the  sum  of  $3,955.40,  which  it 
was  agreed  should  be  deducted  therefrom. 

LoRiNG,  J.  ...  It  will  be  convenient  to  consider  the  respondent's 
contention  that  the  commissioners  had  no  right  to  award  the  $75,000 
allowed  by  them  in  addition  to  the  cost  of  duplication  of  the  water 
company's  plant,  less  depreciation,  in  connection  with  the  water  com- 
pany's contention  that  evidence  of  past  earnings  of  the  water  company 
should  have  been  admitted  in  evidence. 

The  act  under  which  the  award  was  made  (St.  1895,  c.  451)  is  an 
act  enabling  the  city  of  Gloucester  to  "  supply  itself  and  its  inhabitants 
with  water."  By  §  16  of  that  act,  that  right  is  made  conditional  on  its, 
the  city's,  purchasing  the  property  of  the  water  company  in  case  the 
water  company  elects  to  sell  its  property  to  the  city.  In  case  the  city 
agrees  to  buy  the  water  company's  property,  under  an  offer  of  the  water 
company  made  under  the  provisions  of  that  section,  it  is  provided  that 
"said  city  shall  pay  to  said  company  the  fair  value  thereof.  .  .  .  Such 
value  shall  be  estimated  without  enhancement  on  account  of  future 
earning  capacity,  or  future  good  will,  or  on  account  of  the  franchise 
of  said  company." 

In  determining  the  true  construction  of  these  provisions  of  §  16,  it 
is  important  to  bear  in  mind  the  purpose,  which  the  Legislature  had, 
in  making  the  right  of  the  city  to  supply  itself  with  water  conditional 
on  its  buying  the  company's  property,  in  case  the  company  elected  to 
sell  it  to  the  city,  and  in  providing  that  in  ascertaining  the  "fair 
value"  of  that  property,  it  should  not  be  enhanced  "on  account  of 
future  earning  capacity,  or  future  good  will,  or  on  account  of  the  fran- 
chise of  said  company." 

On  the  one  hand,  it  is  plain  that  a  private  water  company  organized 
for  net  profits  cannot  hope  to  compete  with  a  city,  which  can  rely  upon 
taxes  to  supply  a  deficit  in  operating  expenses.  For  that  reason,  it  is 
also  plain  that  if  the  Legislature  had  not  required  the  city  to  buy  the 

1  This  case  is  abridged.  —  Ed. 


448  GLOUCESTEB   WATER   SUPPLY   CO.   V.   GLOUCESTER. 

water  company's  propert}*,  the  company's  property  would  have  been 
practically,  though  not  legally,  confiscated.  No  doubt,  therefore,  can 
arise  as  to  the  reasons  for  the  insertion  of  the  clause  in  §  16  providing 
that  the  value  shall  not  be  enhanced  "  on  account  of  the  franchise  of 
said  company."  The  franchise  of  the  Gloucester  Water  Supplv  Com- 
pany was  not  an  exclusive  franchise.  The  grant  of  a  similar  franchise 
to  the  city  of  Gloucester  to  supply  itself  and  its  inhabitants  with  water 
was  not  a  violation  of  the  franchise  rights  of  the  Gloucester  Water 
Supply  Company;  and  finally,  the  sale  to  the  city  was  not  obligatory 
on  the  water  company.  The  company  was  given  the  option  of  selling 
its  property  to  the  city  or  of  going  on  in  competition  with  the  city, 
under  the  act  in  question.  Under  these  circumstances,  it  is  plain  that 
the  value  of  the  compan3's  property,  which  the  citv  is  compelled  to 
buy,  ought  not  to  be  enhanced  "on  account  of  the  franchise  of  said 
compan}'." 

It  is  also  plain,  so  long  as  a  water  company'  has  no  competitor  in 
supplying  a  town  or  cit\'  with  water,  it  is  practically  in  the  enjoyment 
of  an  exclusive  franchise,  although  its  franchise  is  not  legally  an  ex- 
clusive one.  For  that  reason,  the  past  earnings  of  this  company  were 
not  evidence  of  the  "  fair  value  "  of  this  property.  The  earnings  of  a 
compan}'  which  is  in  the  enjoyment  of  what  is  practically  an  exclusive 
franchise  are  not  a  criterion  of  the  "  fair  value"  of  the  property  apart 
from  an  exclusive  franchise.  We  are  of  opinion  that  the  evidence  of 
past  earnings  offered  by  the  water  compan}-  was  properly  excluded. 
Newburyport  Water  Co.  v.  Newburyport,  168  Mass.  541. 

It  is  argued  b}*  the  petitioner  that  the  admissibilit}'  of  such  evidence 
derives  support  from  St.  1891,  c.  370,  §  12,  which  provides  that  in 
determining  the  "  fair  market  value  "  of  a  gas  or  electric  plant  under 
similar  circumstances  "  the  earning  capacity  of  such  plant  based  upon 
the  actual  earnings  being  derived  from  such  use  at  the  time  of  the  final 
vote  of  such  city  or  town  to  establish  a  plant"  is  to  be  included  "  as 
an  element  of  value  ; "  but  this  clause  as  to  the  earning  capacitj-  being 
considered  as  an  element  of  value  was  omitted  from  the  act  in 
question. 

The  only  doubt  as  to  the  propriety  of  the  allowance  of  a  sum  in 
addition  to  the  cost  of  duplication,  less  depreciation,  of  the  water  com- 
pany's plant  is  whether  the  principles  on  which  the  commissioners 
proceeded  were  sufl^cientl}'  favorable  to  the  water  company. 

It  is  plain  that  the  real,  commercial,  market  value  of  the  property 
of  the  water  compan}-  is,  or  may  be,  in  fact,  greater  than  "  the  cost  of 
duplication,  less  depreciation,  of  the  different  features  of  the  physical 
plant."  Take,  for  example,  a  manufacturing  plant :  Suppose  a  manu- 
facturing plant  has  been  established  for  some  ten  j-ears  and  is  doing  a 
good  business  and  is  sold  as  a  going  concern ;  it  will  sell  for  more  on 
the  market  than  a  similar  plant  reproduced  physically  would  sell  for 
immediately  on  its  completion,  before  it  had  acquired  any  business. 
National  Waterworks  Co.  v.  Kansas  City,  62  Fed.  Rep.  853. 


BRYMER  V.   BUTLER  WATER  CO.  449 

We  think  it  is  plain  that  there  is  nothing  in  the  provisions  of  §  16  of 
the  act  in  question,  St.  1895,  c.  451,  forbidding  the  commissioners 
considering  this  element  of  value  which,  as  we  have  seen,  in  fact 
exists.  The  provisions  of  the  act  are  that  the  "  fair  value  .  .  .  shall 
be  estimated  without  enhancement  on  account  of  future  earning 
capacity,  or  future  good  will,  or  on  account  of  the  franchise  of  said 
company."  Whether  that  would  allow  present  earning  capacity  and 
present  good  will,  apart  from  the  franchise,  to  be  taken  into  account, 
as  distinguished  from  future  earning  capacity  and  future  good  will, 
need  not  be  considered.  It  is  plain  that  the  element  of  value,  which 
comes  from  the  fact  that  the  property  is  sold  as  a  going  concern,  in 
which  case  it  has,  or  may  have,  in  fact,  a  greater  market  value  than 
the  same  property  reproduced  in  its  physical  features,  is  not  excluded 
from  consideration  by  that  provision  of  the  statute. 

It  is  also  plain  that  the  commissioners,  in  allowing  the  $75,000 
allowed  by  them  in  addition  to  the  cost  of  duplication,  less  deprecia- 
tion, of  the  plant  in  its  physical  features,  did  not  go  beyond  this. 
They  state  that  in  their  opinion  "  the  cost  of  duplication,  less  deprecia- 
tion, of  the  different  features  of  the  phj'sical  plant,  .  .  .  does  not 
represent  a  fair  valuation  of  this  plant,  welded  together,  not  only  fit 
and  prepared  to  do  business,  but  having  brought  that  business  into  such 
a  condition  that  there  is  an  enhanced  value  created  thereb}-,  so  that  the 
city  in  purchasing  it,  without  considering  its  income  or  right  to  do 
business,  but  having  the  power  to  carrj-  it  on  on  its  own  account,  should 
pa}'  more  for  the  property  as  such  than  as  if  this  consideration  did  not 
obtain.  This  is  a  value  that  we  have  found  to  be  seventy-five 
thousand  dollars  ($75,000)  that  has  been  imported  into  the  plant, 
which  seems  to  us  as  much  a  part  of  the  property  valuation  as  any 
other  part  of  it."  Meport  affirmed. 


BRYMER  V.   BUTLER  WATER  CO. 
Supreme  Court  of  Pennsylvania,   1897. 

[179  Pa.  St.  231.1] 

Williams,  J.  ...  A  provision  in  the  third  section  of  the  Act  of 
June  2,  1887,  relating  to  the  jurisdiction  of  the  courts  over  gas  and 
water  companies  is  supplemental  to  the  Act  of  1874,  and  defines  some- 
what more  distinctly  the  duty  of  such  companies  to  furnish  the  public 
with  pure  gas  and  water,  but  it  contains  no  allusion  to  the  subject  of 
price.  The  power  of  the  court  to  interfere  between  the  seller  and  the 
buyer  of  water  is  conferred  only  by  the  provisions  already'  quoted  from 
the  Act  of  1874 ;  and  that  act  authorizes  the  court  to  entertain  the 

1  This  case  is  abridged.  —  Ed. 
29 


450  BRTMER   V.   BUTLER   WATER  CO. 

complaint  of  the  buyer,  to  investigate  the  reasonableness  of  the  price 
charged,  and  to  "  dismiss  the  complaint,"  or  to  order  that  the  charges 
complained  of,  if  found  to  be  unreasonable  and  unjust,  "  shall  be 
decreased."  The  water  company  prepares  its  schedule  of  prices  in  the 
first  instance,  and  makes  its  own  terms  with  its  customers  ;  but  if 
these  are  oppressive,  so  that  in  the  exercise  of  the  visitorial  power  of 
the  State  the  just  protection  of  the  citizen  requires  that  they  be  reduced, 
then  the  court  is  authorized  to  say  "  this  charge  is  oppressive.  You 
must  decrease  it.  You  are  entitled  to  charge  a  price  that  will  yield  a 
fair  compensation  to  you,  but  you  must  not  be  extortionate."  This  is 
not  an  authority  to  manage  the  affairs  of  the  compan},  but  to  restrain 
illegal  and  oppressive  conduct  on  its  part  in  its  dealings  with  the 
public.  It  may  be  that  the  power  to  order  that  any  particular  item  of 
charge  shall  "  be  decreased  "  includes  the  power  to  fix  the  extent  of  the 
reduction  that  must  be  made,  or  to  name  the  maximum  charge  for 
the  particular  service  in  controversj',  which  the  court  will  approve,  but 
the  decree  is  that  the  item  shall  "  be  decreased  "  either  generally  or  to 
a  sum  named.  The  schedule  of  charges  must  be  revised  accordingly 
b}'  the  company  defendant,  and  such  revision  may  be  compelled  in  the 
same  manner  that  the  decree  of  the  same  court  may  be  enforced  in 
other  cases. 

We  do  not  think  this  supervisory  power  would  justify  the  court  in 
preparing  a  tariff  of  water  rents  and  commanding  a  corporation  to 
furnish  water  to  the  public  at  the  rates  so  fixed.  This  would  involve  a 
transfer  of  the  management  of  the  property,  and  the  business  of  a 
solvent  corporation,  from  its  owners  to  a  court  of  equity,  for  no  other 
reason  than  that  the  court  regarded  some  one  or  more  of  the  charges 
made  by  the  company  as  too  high.  The  Act  of  1874  contemplates  no 
such  radical  departure  from  established  rules  as  this,  but  provides 
simpl}-  for  the  protection  of  the  citizen  from  extortionate  charges 
specifically  pointed  out  and  complained  of  b}'  petition.  This  leads  us 
to  the  second  question  raised,  viz. :  by  what  rule  is  the  court  to  deter- 
mine what  is  reasonable,  and  what  is  oppressive?  Ordinarily  that  is  a 
reasonable  charge  or  system  of  charges  which  3ield8  a  fair  return  upon 
the  investment  Fixed  charges  and  the  costs  of  maintenance  and 
operation  must  first  be  provided  for,  then  the  interests  of  the  owners 
of  the  property  are  to  be  considered.  They  are  entitled  to  a  rate  of 
return,  if  their  property  will  earn  it,  not  less  than  the  legal  rate  of 
interest ;  and  a  system  of  charges  that  yields  no  more  income  than  is 
fairl}'  required  to  maintain  the  plant,  pa}'  fixed  charges  and  operating 
expenses,  provide  a  suitable  sinking  fund  for  the  payment  of  debts, 
and  paj-  a  fair  profit  to  the  owners  of  the  property*,  cannot  be  said  to 
be  unreasonable.  In  determining  the  amount  of  the  investment  by  the 
stockholders  it  can  make  no  difference  that  money  earned  by  the  cor- 
poration, and  in  a  position  to  be  distributed  by  a  dividend  among  its 
stockholders,  was  used  to  pa}'  for  improvements  and  stock  issued  in 
lieu  of  cash  to  the  stockholders.     It  is  not  necessary  that  the  money 


BRYMER   V.    BUTLER   WATER   CO.  451 

should  first  be  paid  to  the  stockholder  and  then  returned  by  "him  in 
pajment  for  new  stock  issued  to  him.  The  net  earnings,  in  equit}-, 
belonged  to  him,  and  stock  issued  to  him  in  lieu  of  the  money  so  used 
that  belonged  to  him  was  issued  for  value,  and  represents  an  actual 
investment  bj'  the  holder.  If  the  companj-  makes  an  increase  of  stock 
that  is  fictitious,  and  represents  no  value  added  to  the  propert}-  of  the 
corporation,  such  stock  is  rather  in  the  nature  of  additional  income 
than  of  additional  investment.  This  whole  subject  was  brought  to  the 
attention  of  the  learned  judge  by  a  request  that  he  should  find  as  a 
matter  of  law  that  the  reasonableness  of  the  charges  must  be  deter- 
mined with  reference  to  the  expenditure  in  obtaining  the  suppl}-,  and 
providing  for  a  fund  to  maintain  the  plant  in  good  order,  and  pay  a  fair 
profit  upon  the  money  invested  by  the  owners,  and  that  a  rate  which 
did  no  more  than  this  was  neither  excessive  nor  unjust.  This  the 
learned  judge  refused  to  find,  saying  in  reply  to  the  request,  "  we  have 
no  authority'  for  such  a  ruling,  and  it  would  be  unjust  to  the  consumer 
who  would  have  to  pay  full  cost  of  the  water,  provide  a  sinking  fund, 
secure  a  reasonable  profit  upon  the  investment,  and  have  no  voice  in 
the  management  of  the  business  of  the  company.  The  act  of  assembly 
in  this  regard  can  bear  no  such  construction." 

This  ruling  cannot  be  sustained.  The  cost  of  the  water  to  the  com- 
pany includes  a  fair  return  to  the  persons  who  furnished  the  capital  for 
the  construction  of  the  plant,  in  addition  to  an  allowance  annuallj'  of  a 
sum  sufficient  to  keep  the  plant  in  good  repair  and  to  pay  any  fixed 
charges  and  operating  expenses.  A  rate  of  water  rents  that  enables 
the  company  to  realize  no  more  than  this  is  reasonable  and  just.  Some 
towns  are  so  situated  as  to  make  the  procurement  of  an  ample  supply 
of  water  comparatively  inexpensive.  Some  are  so  situated  as  to  make 
the  work  both  difficult  and  expensive.  What  would  be  an  extortionate 
charge  in  the  first  case  might  be  the  verj-  least  at  which  the  water  could 
be  afforded  in  the  other.  The  law  was  correctly  stated  in  the  defend- 
ant's request,  and  the  court  was  in  error  in  refusing  it.  But  we  think 
the  court  had  no  power  to  adopt  for,  and  enjoin  upon,  the  company  a 
comprehensive  schedule  like  that  incorporated  into  the  decree  in  this 
case.  The  decree  found  that  the  water  supply  furnished  by  the  defend- 
ant company  was  abundant  and  "reasonably  pure  and  fit  for  public 
use,"  but,  without  an}-  adjudication  that  a.ny  particular  charge  or  charges 
complained  of  were  excessive  and  must  be  decreased,  he  made  a  decree 
that  "  the  water  rates  of  the  defendant  company  from  March  1,  1896, 
to  be  charged  and  collected  from  the  plaintiffs  for  water  hy  the  defend- 
ant company  to  the  plaintiffs  shall  be  as  follows  : "  Then  follows  a 
table  filling  two  and  a  half  pages  of  the  appellant's  paper-book,  and 
providing  specifically  for  domestic  rates,  for  liver}-,  hotel,  and  trading 
stables,  for  hotels  and  boarding  houses,  for  fountains,  steam  engines, 
schools,  motors,  public  buildings,  special  rates,  and  meter  rates,  sub- 
ject to  provision  that  "when  the  water"  which  the  same  decree  had 
just  pronounced  to  be  reasonably  pure  and  suitable  for  domestic  use 


452  STEENERSON   V.   GREAT   NORTHERN  RAILWAY. 

"  is  properly  filtered  the  charges  may  be  increased  twent}*  per  cent." 
The  school  district  of  Butler  was  not  a  party  complainant  in  this  case^ 
nor  was  the  county  of  Butler,  but  both  were  taken  under  the  protection 
of  the  court  and  specificall}'  provided  for  by  the  decree.  Fountains 
are  luxuries.  The  question  whether  the  police  power  of  the  State  can 
be  successfully  invoked  to  cheapen  the  price  of  water  furnished  for 
purposes  of  display  or  the  mere  gratification  of  one's  taste,  is  at  least 
open  to  discussion,  but,  without  discussion,  it  is  disposed  of  by  this 
decree,  and  the  price  reduced.  In  short,  upon  a  general  complaint 
that  the  rates  charged  by  the  defendant  were  too  high,  without  specifi- 
cation of  the  particular  charges  that  were  alleged  to  be  excessive,  the 
court  has  undertaken  to  revise  the  entire  schedule  of  prices,  and 
instead  of  directing  the  company  to  decrease  the  objectionable  charges, 
has  formulated  an  entirely  new  schedule  of  prices,  covering  all  of  the 
business  of  the  company.  This  new  schedule  it  has  framed  upon  the 
mistaken  basis  adopted  and  stated  in  the  third  conclusion  of  law 
already  considered.  This  action  is  not  authorized  by  the  Act  of  1874. 
It  is  not  the  hearing  of  a  complaint  against  the  charges  made  by 
the  company  and  a  decision  of  the  controversj'  so  arising,  but  it  is  the 
assumption  of  a  power  to  frame  a  schedule  of  prices  covering  the 
entire  business  of  the  company,  with  all  its  customers,  man)-  of  whom 
are  not  even  complaining  of  the  rates  paid  b}-  them.  The  framing  of 
such  a  general  schedule  is  ordinarilj*  the  right  of  the  company.  The 
correction  of  this  schedule  when  framed,  whenever  it  may  work  injus- 
tice and  hardship  is  the  prerogative  of  the  court,  and  one  which  should 
be  fearlessl}'  exercised. 

For  reasons  now  given  this  decree  cannot  be  aflSrmed,  but  under  the 
peculiar  circumstances  surrounding  this  case  we  cannot  enter  a  simple 
decree  of  reversal. 


STEENERSON  v.   GREAT  NORTHERN  RAILWAY  CO. 
Supreme  Court  of  Minnesota,  1897. 

[69  Minn.  353.1] 

The  plaintiff,  Elias  Steenerson,  in  1893  filed  a  complaint  with  the 
Railroad  and  Warehouse  Commission,  complaining  that  the  tariff  of 
charges  of  the  Great  Northern  Railway  Company  for  the  transportation 
of  wheat,  oats,  barley,  and  other  grains  from  Crookston,  Fisher,  and 
East  Grand  Forks,  to  the  terminals  Minneapolis,  Duluth,  and  St.  Paul, 
were  unjust  and  unreasonable,  in  that  they  were  at  least  one-third  too 
high,  and  asked  that  the  same  be  reduced  to  and  fixed  at  twelve  cents 
per  hundred  pounds  between  Crookston  and  either  of  said  terminals, 

1  This  case  is  abridged.  —  Ed. 


i 


STEENERSON   V.   GREAT   NORTHERN   RAILWAY.  453 

and  between  other  stations  on  said  railwaj*  and  said  terminals  in  pro- 
portion, or  to  a  just  and  reasonable  rate.  The  defendant  compan}' 
made  answer  to  such  complaint,  admitted  the  existence  of  charges  as 
alleged  in  the  complaint,  and  alleged  that  its  rates  and  charges,  "in- 
cluding those  in  question,"  were  in  all  respects  reasonable  and  just. 

Mitchell,  J.  ...  1.  It  must  now  be  accepted  as  the  settled  law 
that,  when  rates  of  charges  by  railway  companies  have  been  fixed  by 
the  legislature  or  a  commission,  the  determination  of  the  question 
whether  such  rates  are  "  reasonable  "  or  "  unreasonable  "  is  a  judicial 
function.  But  this  is  so,  not  because  the  fixing  of  rates  is  a  judicial 
function  (for  all  the  authorities  agree  that  it  is  a  legislative  one),  but 
solel}'  b}"  virtue  of  the  constitutional  guarant}'  that  no  one  shall  be  de- 
prived of  his  property  without  due  process  of  law.  Therefore  the  onl}' 
function  of  the  courts  is  to  determine  whether  the  rates  fixed  violate 
this  constitutional  principle. 

Courts  should  be  ver}-  slow  to  interfere  with  the  deliberate  judgment 
of  the  legislature  or  a  legislative  commission  in  the  exercise  of  what  is 
confessedly  a  legislative  or  administrative  function.  To  warrant  such 
interference,  it  should  clearl}'  appear  that  the  rates  fixed  are  so  grossly 
inadequate  as  to  be  confiscatory,  and  hence  in  violation  of  the  constitu- 
tion. It  is  not  enough  to  justify  a  court  in  holding  a  rate  "  unreason- 
able," and  hence  unconstitutional,  that,  if  it  was  its  province  to  fix 
rates,  it  would,  in  its  judgment,  have  fixed  them  somewhat  higher. 
Any  such  doctrine  would  result,  in  effect,  in  transferring  the  power  of 
fixing  rates  from  the  legislature  to  the  courts,  and  making  it  a  judicial, 
and  not  a  legislative,  function.  When  there  is  room  for  a  reasonable 
difference  of  opinion,  in  the  exercise  of  an  honest  and  intelligent  judg- 
ment, as  to  the  reasonableness  of  a  rate,  the  courts  have  no  right  to 
set  up  their  judgment  against  that  of  the  legislature  or  of  a  legislative 
commission.  In  my  opinion,  it  is  only  when  a  rate  is  manifestlj'  so 
grossly  inadequate  that  it  could  not  have  been  fixed  in  the  exercise  of 
an  honest  and  intelligent  judgment  that  the  courts  have  any  right  to 
declare  it  to  be  confiscatory'.  This  seems  to  be  substantiall}'  the  doc- 
trine suggested  in  Spring  v.  Schottler,  110  U.  S.  347-354,  4  Sup. 
Ct.  48,  which,  so  far  as  I  can  discover,  is  the  first  case  in  which  that 
court  suggested  any  modification  or  limitation  of  the  doctrine  of  the 
so-called  "  Granger  Cases."  And  I  think  it  is  the  doctrine  which  the 
courts  must  finally  settle  down  on,  unless  they  are  prepared  to  assume 
the  function  of  themselves  fixing  rates. 

2.  What  is  a  reasonable  rate  is  a  most  diflScult  question,  and  it  is 
doubtful  whether  any  single  rule  for  determining  it  can  be  laid  down 
that  would  be  complete,  and  alike  applicable  to  all  cases.  But  as  good 
a  general  rule  as  I  have  found  is  that  stated  by  counsel  for  the  North- 
ern Pacific  Railway  Company  in  this  case,  to  wit : 

"  If  a  railroad  is  built  and  operated  wisely  and  economically  ;  if  it  is 
located  where  public  need  requires  it,  where  there  is  business  to  justif}' 
its  existence,  and  constructed  so  as  to  be  fit  and  well  adapted  for  the 


454  STEENERSON   V.   GREAT   NORTHERN   RAILWAY. 

business  which  it  aims  to  accommodate,  —  it  should  be  entitled  to  re- 
turn as  good  interest  [on  the  cost  of  the  reproduction  of  the  road]  as 
capital  invested  in  the  average  of  other  lines  of  enterprise." 

It  seems  to  me  that  it  follows,  as  corollaries  from  this  rale,  that  — 
First,  the  cost  of  reproduction  must  be  estimated  on  a  present  cash 
basis,  and  that  it  can  make  no  difference  whether  a  road  was  originally 
built  with  cash  capital  paid  In  by  the  stockholders,  or  with  borrowed 
money  secured  b}-  mortgage  on  the  property' ;  and,  second,  a  rate  ma}- 
be  reasonable  during  times  of  general  financial  and  business  depression, 
when  capital  invested  in  all  lines  of  enterprise  is  yielding  a  small  re- 
turn, which  would  be  unreasonable  in  prosperous  times,  when  capital 
invested  in  business  enterprises  is  yielding  a  much  larger  return. 
There  is  no  constitutional  principle  which  guarantees  the  capital  in- 
vested in  railroads  immunity  from  business  vicissitudes  to  which  capital 
invested  in  all  other  enterprises  is  subject.  These  propositions  are 
fully  discussed  in  the  opinion.  The  courts  should  take  notice  of  the 
general  depression  in  business  prevailing  in  1894. 

3.  Where  capital  (including  labor)  invested  in  the  production  of 
an}'  article  or  commodity  is  comparatively  unremunerative,  yielding 
but  a  small  return,  a  rate  for  the  transportation  of  such  article  or  com- 
modity may  be  reasonable,  although,  if  the  carrier  was  required  to  do 
all  his  business,  at  rates  fixed  on  a  corresponding  basis,  such  rates 
would  be  unreasonable,  to  the  extent  of  being  confiscator}'.  This  is 
but  an  enlarged  application  of  a  principle  alreadv  suggested.  It  is  a 
principle  upon  which  railroads  themselves  act  every  day  in  fixing  rates, 
recognizing  as  they  do  that  rates  are  largely  dependent  upon  compe- 
tition among  producers  or  shippers.  Of  course,  this  proposition  has 
its  limitations,  but  it  is  unnecessary  to  discuss  them  here.  The  courts, 
I  think,  should  take  notice  of  the  small  profit  in  raising  grain  in  Min- 
nesota in  and  about  1894,  owing  to  the  comparatively  low  prices  then 
prevailing. 

I  will  not  go  into  an}'  discussion  of  the  evidence,  or  any  analysis  of 
the  labyrinth  of  figures  and  estimates  presented  in  the  testimony. 
That  has  been  very  exhaustively,  and,  as  I  think,  correctly,  done  by 
Justice  Canty.  Applying  the  rules  I  have  suggested  to  the  evidence, 
I  do  not  think  any  court  would  be  justified  in  holding  that  the  railroad 
company  has  satisfactorily  proved  that  the  rates  fixed  by  the  commis- 
sion for  the  transportation  of  grain  are  **  unreasonable ;  "  that  is,  if 
enforced,  they  would  be  confiscatory. 


ILLINOIS   CENTRAL   R.R.   CO.   V.    INTERSTATE   COMMERCE   COMM.      455 


ILLINOIS  CENTRAL  RAILROAD  COMPANY  v.  INTERSTATE 
COMMERCE  COMMISSION. 

Supreme  Court  of  the  United  States,   1907. 

[206  U.  S.  414.1] 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Louisiana  to  review  a  decree  enforcing  an  order  of  the  Inter- 
state Commerce  Commission  requiring  carriers  to  desist  from  charging 
an  increased  freight  rate  on  lumber.     Affirmed. 

Mk.  Justice  MoKenna,  This  comment,  it  may  be  said,  is  not  applicable 
to  the  ninth  and  tenth  propositions  of  appellants,  as  they  present  propo- 
sitions of  law  which  were  not  only  disregarded  by  the  Commission,  but 
the  antithesis  of  them  was  asserted  in  the  eighth  finding.  This  contention 
must  be  specifically'  considered.  The  Commission  finds  that  the  net  and 
gross  earnings  of  the  appellants  have  grown  from  year  to  year,  and  also 
that  what  they  have  reported  as  operating  expenses  have  also  grown. 
But  in  these  operating  expenses  there  were  included  "expenditures  for 
real  estate,  right  of  way,  tunnels,  bridges,  and  other  strictly  permanent 
improvements,  and  also  for  equipment,  such  as  locomotives  and  cars." 
The  Commission  expressed  the  opinion  that  such  expenditures  should 
not  be  charged  to  a  single  year,  but  "  should  be,  as  far  as  practicable 
and  so  far  as  rates  exacted  from  the  public  are  concerned,  '  projected 
proportionately  over  the  future.'"  And  it  was  said:  "If  these  large 
amounts  are  deducted  from  the  annual  operating  expenses  reported  by 
the  defendants  (appellants),  it  will  be  found  that  the  percentage  of  op- 
erating expenses  to  earnings  has  in  some  instances  diminished  and  in 
others  increased  to  no  material  extent."  The  exact  effect  of  the  differ- 
ence of  view  between  appellants  and  the  Commission  as  to  operating 
expenses  there  is  no  test ;  but  it  cannot  be  said,  even  if  the  commission 
was  wrong  as  to  such  expenses,  that  error  in  its  ultimate  conclusion 
is  demonstrated  or  that  the  correctness  of  the  conclusion  is  made  so 
doubtful  as  to  justify'  a  reversal.  The  findings  show  that  the  old  rates 
were  profitable  and  that  dividends  were  declared  even  when  permanent 
improvements  and  equipment  were  charged  to  operating  expenses. 
But  may  they  be  so  charged?  Appellants  contend  that  the  answer 
should  be  so  obvioush'  in  the  affirmative  that  it  should  be  made  an 
axiom  in  transportation.  On  principle  it  would  seem  as  if  the  answer 
should  be  otherwise.  It  would  seem  as  if  expenditures  for  additions  to 
construction  and  equipment,  as  expenditures  for  original  construction 
and  equipment,  should  be  reimbursed  by  all  of  the  traffic  they  accommo- 
date during  the  period  of  their  duration,  and  that  improvements  that 
will  last  manj'  years  should  not  be  charged  wholly  against  the  revenue 
of  a  single  year. 

1  Only  one  point  is  printed.  —  E0. 


456      LONG  BRANCH  COMMISSION  V.   TINTERN  MANOR  WATER   CO. 


LONG  BRANCH  COMMISSION  v.  TINTERN  MANOR  WATER 

COMPANY. 

CouKT  OF  Chancert  of  New  Jebsey,  1905. 

[10  N.J.Eq.ll.^'] 

AcTiOK  by  the  Long  Branch  Commission  against  the  Tintern  Manor 
Water  Company,  to  restrain  defendant  from  cutting  oflf  water  supply  to 
the  city  of  Long  Branch,  and  to  fix  reasonable  rates  for  sucb  supply- 
Decree  for  complainant. 

Pitney,  V.  C.  The  supplying  company  is,  as  we  have  seen,  under 
obligation  to  keep  in  advance  of  the  present  demand  and  take  liberal 
account  of  the  probable  increase  of  demand  due  to  increase  of  popula- 
tion. I  think  the  language  of  Mr.  Justice  Dixox,  in  Slingerland  v. 
Newark,  54  N.  J.  Law,  62,  at  page  69,  23  Atl.  129,  at  page  131,  is  apt 
on  this  point :  "  It  would,  of  course,  be  absurd  for  the  city  to  construct 
water  works  adequate  only  for  its  present  wants,  and  the  prosecutor 
does  not  assert  that  the  works  now  contemplated  are  unreasonably  large 
in  view  of  the  city's  prospective  growth."  This  is  in  strict  accord  with 
what  was  said  (and  above  referred  to)  by  Justice  Van  Syckel,  in  01m- 
stead  V.  Morris  Aqueduct,  47  N.  J.  Law,  329,  as  follows :  "  In  a  matter 
of  extreme  necessity  all  contingences  must  be  provided  for,  and  the 
supply  must  be  so  ample  that  a  lack  of  water  cannot  be  apprehended." 
To  the  same  effect  are  the  more  extended  remarks  of  Judge  Parker  in 
the  Supreme  Court  in  the  same  case,  reported  in  46  N.  J.  Law,  500. 
The  learned  judges  in  these  cases  were  discussing  the  question  of  ne- 
cessity for  the  exercise  of  the  eminent  domain.  The  argument  from 
such  premises  to  the  present  is  a  fortiori.  These  considerations  lead  to 
the  conclusion  that  the  water  company  when  it  starts  with  new  works, 
or  a  large  addition  to  the  original  supply,  is  entitled  to  an  income  there- 
from somewhat  greater  than  what  is  due  to  the  cost  of  work  sufficient 
merely  to  meet  the  present  demands.  I  say  "  somewhat  greater  "  for  I 
do  not  mean  to  be  understood  as  holding  that  capitalists  ought  to  expect 
an  immediate  compensatory  income  from  an  enterprise  of  this  character. 
But  on  the  other  hand  it  would  be  manifestly  unjust  to  expect  them  to 
invest  their  money  in  a  plant  necessarily  larger  than  present  demands 
require  and  take  as  an  income  therefor  such  a  sum  as  would  satisfy  an  in- 
vestment sufficient  to  meet  present  demands.    For  here  comes  in  again» 

1  This  opinion  so  elaborately  discnsses  the  testimony  that  it  was  thought  to  be  too 
nnwieldy  for  inclasion  here.  The  analysis  of  his  problem  with  which  the  vice  chancellor 
begins  this  discussion  is  particularly  noteworthy.  "  First.  What  annual  compensation 
ought  the  defendant  to  have  for  the  supply  of  water  which  it  is  giving,  and  agrees  to 
continue  to  give,  to  the  inhabitants  of  the  territory  covered  by  the  Long  Brancli  Com- 
mission ?  Second.  How  shall  that  compensation  be  distributed  between  the  municipal- 
ity, as  such,  for  public  purposes  on  the  one  hand,  and  the  private  consumers  on  the 
other  ?  Third.  As  between  the  private  consumers  themselves  ?  "  On  the  point  of 
proper  capitalization  there  is  one  point  for  which  the  case  will  often  be  quoted ;  and 
an  extract  from  the  introduction  to  this  is  included.  —  £d. 


WILLCOX  ET  AL   V.   CONSOLIDATED   GAS   COMPANY.  457 

with  great  force,  the  consideration  previously  mentioned,  that  the  mu- 
nicipality cannot  bind  itself  for  more  than  10  3'ears ;  and,  in  fact,  need 
not  bind  itself  at  all  for  any  period,  and  it  holds  in  its  hands  the  abso- 
lute power  to  oust  the  water  company  at  any  time  it  shall  so  choose  and 
may  exercise  that  power  as  soon  as  by  the  increase  of  population  and 
demand,  the  investment  by  the  capitalists  shall  have  become  actually 
profitable. 


HOUSTON  &  TEXAS  CENTRAL  RAILWAY  COMPANY  v. 
STOREY  ET  AL. 

Circuit  Court  of  the  United  States,  1906. 

[149  Fed.  499.] 

On  demurrers  to  bills  to  enjoin  the  schedule  of  passenger  rates  pre- 
scribed by  the  railroad  commission, 

Maxet,  District  Judge.  8.  The  ninth  demurrer  challenges  the  right 
of  the  plaintiff,  as  claimed  in  paragraph  10  of  the  bill,  to  earn  an 
amount  sufficient  to  provide  a  sinking  fund  for  the  discharge  of  its  in- 
debtedness, in  addition  to  paying  the  interest  thereon.  This  claim  of 
the  plaintiff  was  doubtless  based  upon  the  decision  of  the  Supreme 
Court  of  Pennsj'lvania.  See  Brymer  v.  Butler  Water  Co.,  179  Pa.  251, 
36  Atl.  249,  36  L.  R.  A.  260.  With  due  respect  for  the  opinion  of 
that  high  tribunal,  this  court  is  unable  to  concur  in  the  view  expressed 
by  it,  and  therefore  sustains  the  demurrer. 


WILLCOX  et    AL    CONSTITUTING   THE    PUBLIC    SERVICE 

COMMISSION  OF  NEW  YORK  v.    CONSOLIDATED 

GAS   COMPANY. 

Supreme  Court  of  the  United  States,  1909. 

[212  U.  S.  19.1] 

The  appellee,  complainant  below,  filed  its  bill  May  1,  1906,  in  the 
United  States  Circuit  Court  for  the  Southern  District  of  New  York 

^  Only  a  part  of  the  opinion  is  printed.  —  Ed. 


458  WILLCOX  ET   AL   V.   CONSOLIDATED  GAS  COMPANY. 

against  the  city  of  New  York,  the  Attorney  General  of  the  State,  the 
District  Attorney  of  New  York  County  and  the  Gas  Commission  of 
the  State,  to  enjoin  the  enforcement  of  certain  acts  of  the  legislature 
of  the  State,  as  well  as  of  an  order  made  by  the  Gas  Commission,  Feb- 
ruary 23,  1906,  to  take  effect  May  1,  1906,  relative  to  rates  for  gas  in 
New  York  City. 

Mr.  Justice  Peckham.  We  think  that  under  the  above  facts  the 
courts  ought  to  accept  the  valuation  of  the  franchises  fixed  and  agreed 
upon  under  the  act  of  1884  as  conclusive  at  that  time.  The  valuation 
was  provided  for  in  the  act,  which  was  followed  by  the  companies, 
and  the  agreement  regarding  it  has  been  always  recognized  as  valid, 
and  the  stock  has  been  largely  dealt  in  for  more  than  twenty  years  past 
on  the  basis  of  the  validity  of  the  valuation  and  of  the  stock  issued  by 
the  company. 

But  although  the  State  ought,  for  these  reasons,  to  be  bound  to  rec- 
ognize the  value  agreed  upon  in  1884  as  part  of  the  property  upon 
which  a  reasonable  retprn  can  be  demanded,  we  do  not  think  an 
increase  in  that  valuation  ought  to  be  allowed  upon  the  theor}-  sug- 
gested by  the  court  below.  Because  the  amount  of  gas  supplied  has 
increased  to  the  extent  stated,  and  the  other  and  tangible  property  of 
the  corporations  has  increased  so  largely  in  value,  is  not,  as  it  seems  to 
us,  any  reason  for  attributing  a  like  proportional  increase  in  the  value  of 
the  franchises.  Real  estate  may  have  increased  in  value  very  largely, 
as  also  the  personal  property,  without  any  necessary  increase  in  the 
value  of  the  franchises.  Its  past  value  was  founded  upon  the  oppor- 
tunity of  obtaining  these  enormous  and  excessive  returns  upon  the 
property  of  the  company,  without  legislative  interference  with  the 
price  for  the  supply  of  gas,  but  that  immunity  for  the  future  was,  of 
course,  uncertain,  and  the  moment  it  ceased  and  the  legislature  reduced 
the  earnings  to  a  reasonable  sum  the  great  value  of  the  franchises  would 
be  at  once  and  unfavorably  affected,  but  how  much  so  it  is  not  possi- 
ble for  us  now  to  see.  The  value  would  most  certainly  not  increase. 
The  question  of  the  regulation  of  rates  did  from  time  to  time  thereafter 
arise  in  the  legislature  and  finally  culminated  in  these  acts  which  were 
in  existence  when  the  court  below  found  this  increased  value  of 
the  francliises.  We  cannot,  in  any  view  of  the  case,  concur  in  that 
finding. 


MILWAUKEE  ELECTRIC  RAILWAY,    ETC.   CO.   V.   MILWAUKEE.      459 


MILWAUKEE    ELECTRIC    RAILWAY    AND    LIGHT    CO. 
V.   CITY   OF   MILWAUKEE. 

Circuit  Court  of  the  United  States,  1898. 

[87  Fed.  577.1] 

Final  hearing  in  two  actions,  —  one  wherein  the  street  railway  com- 
pany is  complainant,  and  the  other  brought  b}'  the  trustee  for  the 
bondholders, — each  seeking  a  decree  declaring  null  and  void,  in  re- 
spect of  the  complainant,  a  purported  ordinance  of  the  defendant  city 
entitled  "An  ordinance  to  regulate  the  rate  of  fare  upon  the  street 
railways  in  the  city  of  Milwaukee,  and  providing  for  the  sale  of  pack- 
ages of  tickets  thereon,"  approved  June  11,  1896,  and  to  perpetually 
enjoin  its  enforcement. 

Seaman,  District  Judge.  .  .  .  The  difficulties  presented  in  this  case 
do  not,  therefore,  rest  in  any  doubt  as  to  the  general  principles  which 
must  be  observed,  nor  in  ascertaining  the  actual  facts  disclosed  by  the 
testiqpony  as  a  whole,  so  far  as  material  to  this  controversy^.  Although 
the  testimony  on  the  part  of  complainant  makes  a  volume  of  1,445 
printed  pages,  and  that  of  the  defendant  163  pages,  the  only  sub- 
stantial contentions  of  fact  relate  to  items  of  expenditure  and  claims 
of  credit  by  way  of  depreciation,  presented  on  behalf  of  the  complain- 
ant as  entering  into  the  showing  of  net  revenue,  and  to  the  present  or 
reproduction  value  of  the  plant.  And  it  may  be  remarked,  in  passing, 
that  this  testimony  is  so  well  classified  and  indexed,  with  such  fair 
summaries  in  the  briefs,  that  the  task  of  examination  has  been  materi- 
ally lightened.  But  the  sole  embarrassment  in  the  inquiry  arises  from 
the  wide  divergence  which  appears  between  the  actual  and  undisputed 
amount  of  the  cash  investment  in  the  undertaking,  and  the  estimates, 
on  either  hand,  of  the  amounts  for  which  the  entire  plant  could  now  be 
reproduced,  in  the  view  that  the  line  of  authorities  referred  to  does  not 
attempt  to  define  or  specify  an  exact  measure  or  state  of  valuation, 
and  leaves  it,  within  the  principles  stated,  that  "  each  case  must  de- 
pend upon  its  special  facts."  Therefore  the  twofold  inquiries  of 
reasonableness  above  indicated  are  of  mixed  law  and  fact,  and  start 
with  the  presumption,  in  favor  of  the  ordinance,  (1)  that  the  prevailing 
rates  exacted  too  much  from  the  public,  and  (2)  that  those  prescribed 
are  reasonable. 

1.  Are  the  terms  and  rates  fixed  b\'  the  company  excessive  demands 
upon  the  public,  in  view  of  the  service  rendered?  The  Milwaukee 
Street  Railwa}'  Compan}',  of  which  the  complainant  is  the  successor 
in  interest,  was  organized  in  December,  1890,  for  the  purpose  of 
establishing  an  electric  street  railway  system,  which  should  cover  the 
entire  field  for  the  city  of  Milwaukee.     There  were  then  in  operation 

1  This  case  is  abridged.  —  Ed. 


460     MILWAUKEE   ELECTRIC   RAILWAY,   ETC.   CO.   V.    MILWAUKEE. 

five  distinct  lines,  owned  separatel}',  operated  mainly  by  horse  or  mule 
power,  each  charging  separate  fares,  and  having  no  sj'stem  of  transfers. 
It  is  conceded  that  the  service  was  slow  and  antiquated,  was  not  well 
an'anged  for  the  wants  of  the  city,  and  was  general!}-  inadequate  and 
unsatisfactor}'.  As  the  old  lines  occupied  the  principal  thoroughfares, 
and  the  public  interest  prevented  the  allowance  of  double  lines  in  such 
streets,  the  improvement  could  not  be  made  effective  unless  those  lines 
were  purchased,  or  in  some  manner  brought  into  the  proposed  system. 
The}'  were  gradually  acquired,  at  prices  which  may  appear  excessive 
when  measured  by  results,  and  during  the  ensuing  period  of  about 
three  years  the  work  of  installing  the  new  system  was  carried  on, 
involving  an  entire  reconstruction  and  rearrangement  of  the  old  lines 
and  extensions,  and  new  and  improved  equipments  throughout,  at  an 
expenditure  of  over  $3,000,000,  aside  from  the  cost  of  the  old  lines. 
As  a  result,  at  the  time  the  ordinance  was  adopted,  the  mileage  of 
tracks  had  increased  from  the  previous  aggregate  of  110  miles  to 
142.89  miles,  reaching  every  section  of  the  city,  with  shorter  and 
better  routes,  and  furnishing  38  transfer  points,  with  a  universal 
transfer  system,  —  a  feature  of  special  value  to  the  public,  as  a  single 
fare  of  five  cents  gives  a  maximum  length  of  ride  more  than  double  the 
old  arrangement.  The  service  was  improved  in  speed  and  regularity 
50  per  cent  or  more,  with  better  cars  and  less  inconvenience,  and  it 
appears  beyond  question  that  it  was  generally  more  satisfactory  and 
economical  from  the  standpoint  of  the  public.  In  other  words,  the 
service  was  materially  enhanced  in  its  value  to  the  public,  without  any 
increase  in  either  normal  or  maximum  charges,  affording  rides  for  five 
cents  which  had  previously  cost  two  and  even  three  fares ;  and  against 
all  these  advantages  there  appears  only  a  single  benefit  extended  b}' 
three  out  of  the  five  constituent  companies  which  is  not  given  under 
the  new  arrangement,  namely,  in  the  sale  of  commutation  tickets,  —  an 
omission  for  which  there  seems  to  be  plausible  excuse  and  oflTset  in  the 
universal  system  of  transfers,  aside  from  the  other  advantages.  Surely, 
therefore,  no  imposition  upon  the  public  appears  through  any  compari- 
son between  the  old  and  the  new  service  and  rates.  Nor  does  it  find 
any  countenance  in  comparison  with  either  service  or  rates  which  pre- 
vail in  other  cities,  for  it  is  shown  in  this  record,  and  is  undisputed, 
that  the  five-cent  rate  is  almost  universal ;  that  commutations  are 
exceptional  in  cities  of  like  class,  and  arise  out  of  exceptional  condi- 
tions, which  are  not  fairly  applicable  here ;  and  that  instances  of  lower 
rates  are  so  clearly  exceptional  that  they  cannot  have  force  for  any 
aflRrmative  showing  of  reasonableness  in  the  instant  case.  Neverthe- 
less, with  the  burden  of  proof  on  the  defendant,  these  considerations 
are  not  controlling,  unless  it  further  appears  that  the  earnings  of  the 
company  are  insufficient,  in  view  of  the  amount  which  may  justly  be 
regarded  as  the  investment  in  the  undertaking,  to  warrant  the  making 
of  rates  and  terms  which  are  more  advantageous  to  tiie  public.  The 
interests  of  the  public  in  its  highways  are  paramount,  and,  if  the  service 


MILWAUKEE   ELECTRIC   RAILWAY,   ETC.   CO.   V.   MILWAUKEE.       461 

can  reasonably  be  afforded  more  cheap!}'  in  Milwaukee  than  in  other 
cities  of  like  class,  the  community  is  entitled  to  the  just  benefit  of  any 
possible  conditions  which  ma}'  tend  to  that  result.  The  issue  in  that 
regard  must  be  met  under  the  second  branch  of  inquiry,  but  I  am 
clearly  satisfied  that  this  first  question  must  be  answered  in  favor  of 
the  complainant,  if  the  evidence  sustains  its  claim  that  lower  rates 
would  be  confiscatory,   and  not  compensatory, 

2.  Are  the  earnings  of  the  property  insuflScient,  in  view  of  all  the 
conditions,  to  justify  this  reduction  in  the  rates  of  fare?  Solution  of 
this  inquiry  depends  upon  the  showing  (1)  of  earning  capacity  at  exist- 
ing rates,  and  (2)  of  the  "  amount  really  and  necessarily  invested  in 
the  enterprise,"  and  upon  the  conclusion  (3)  whether  the  ratio  of 
return  upon  the  investment  is  excessive.  In  the  statements  which  are 
referred  to  both  parties  have  adopted  a  ratio,  so  far  as  necessary,  to 
separate  the  electric  lighting  plant  owned  by  the  complainant,  so  that 
the  statements  which  follow  relate  exclusively  to  the  street  railway 
plant,  except  where  otherwise  mentioned. 

First.  The  question  of  earning  capacity  is  confined  by  the  testimony 
to  the  results  of  three  years'  operation,  being  after  the  system  was 
fairly  installed,  and  inclusive  of  the  year  in  which  the  ordinance  was 
adopted,  namely,  1894,  1895,  and  1896.  It  is  suggested  on  behalf  of 
the  defendant  that  those  years  were  exceptional,  for  one  cause  and  an- 
other, and  are  not  a  fair  criterion  for  future  earnings  under  more 
favorable  circumstances  ;  but  the  suggestion  is  without  force  in  this 
case,  because  the  ordinance  operates  upon  these  very  conditions,  and 
must,  of  course,  be  predicated  upon  them,  —  upon  existing  facts,  and 
not  upon  mere  future  possibilities,  —  and,  so  determined,  the  instant 
case  cannot  affect  rights  under  new  conditions. 

The  proofs  on  the  part  of  the  complainant  furnish,  in  detail,  from 
the  books  of  account,  the  gross  earnings,  the  various  items  of  expense 
and  of  charges  for  which  deduction  is  claimed,  excluding  any  payments 
of,  or  allowance  for,  interest  on  the  bonded  indebtedness,  and  state  the 
net  earnings  as  follows:  In  1894,  $64,868.77;  in  1895,  $269,202.30; 
in  1896,  $100,628.81.  In  this  showing  it  appears  that  deduction  of 
$247,324.88  is  made  in  1894  for  "  depreciation,"  being  the  amount 
apportioned  in  that  year  to  meet  the  alleged  annual  loss  by  physical 
depreciation  of  the  plant,  to  keep  the  capital  intact.  No  such  deduc- 
tion is  made  in  1895  and  1896,  because  not  shown  in  the  books, 
although  it  is  insisted  that  like  credit  is  due  in  each  year,  for  the 
purposes  of  this  case. 

The  defendant  concedes  the  correctness  of  the  showing  as  to  the 
gross  earnings,  but  disputes  certain  large  items  for  which  deductions 
are  made  in  the  above  statement,  corrects  some  items,  and  denies  that 
any  allowance  should  be  made  for  depreciation.  Aside  from  the  fact 
that  reports  and  statements  of  financial  condition  made  from  time  to 
time  by  the  company  omit  many  of  the  deductions  here  asserted,  these 
contentions  on  the  part  of  the  defendant  rest  solely  upon  the  books  of 


462     MILWAUKEE   ELECTRIC   RAILWAY,   ETC.    CO.   V.   MILWAUKEE. 

account  kept  by  the  compan}-,  and  the  testimony  of  Mr.  De  Grasse, 
stating  his  conclusions  as  an  expert  accountant  from  examination  of 
such  books,  with  the  following  result  as  to  net  earnings :  In  1894, 
8387,074.70;  in  1895,  $479,621.11;  in  1896,  $66,520.99.  But  this 
total  for  1896  erroneously  includes  an  allowance  of  $160,550  paid  for 
interest  on  bonds,  which  should  be  excluded  on  the  basis  assumed,  and 
would  make  the  net  earnings  for  that  year,  on  his  computation, 
$227,070.99.  In  this  statement  the  allowance  for  depreciation  in  1894 
is  excluded  by  Mr.  De  Grasse,  because  that  item  was  in  fact  charged 
off  upon  change  in  the  system  of  bookkeeping.  He  also  excludes  large 
amounts  of  undoubted  expenditures  upon  the  hypothesis  that  they 
belong  to  "construction  account,"  as  covering  permanent  improve- 
ments, and  not  to  "  expense  of  maintenance,"  as  stated ;  rejects 
certain  payments  as  accruing  on  account  of  previous  3'ears,  and  certain 
sums  apportioned  and  charged  off  to  meet  damage  claims  ;  and  makes 
corrections  as  to  taxes,  for  which  the  book  entries  were  made  in 
advance  upon  estimates  b}^  way  of  apportioning  the  expenses  of  the 
year,  pending  litigation  and  other  causes.  However  valuable  this 
testimony  is  for  analysis  of  the  bookkeeping  methods  and  for  correction 
of  certain  charges,  it  is  clearly  insufficient,  without  other  support,  to 
contradict  the  undisputed  testimon)',  both  positive  and  expert,  on  the 
part  of  complainant,  which  verifies  substantially  its  contention  upon 
the  disputed  subjects  of  deduction,  namely,  that  the  expenditures  so 
charged  were  largel}',  if  not  whoU}-,  of  such  nature  as  to  justify  de- 
duction for  "  maintenance  ;  "  and  that  depreciation  is  a  well-recognized 
fact  in  all  such  plants,  for  which  allowance  must  be  made  to  save  the 
capital  from  impairment,  without  regard  to  any  question  of  its  entrj* 
upon  the  books. 

Making  allowances  for  maintenance  alone,  in  accordance  with  the 
analysis  presented  by  the  expert  witnesses  Goodspeed,  Coffin,  McAdoo, 
and  Beggs,  taking  in  each  instance  the  estimate  most  favorable  to  the 
defendant,  I  am  satisfied  that  the  defendant's  claim  of  net  earnings 
must  be  materially  reduced,  and  that  the  largest  amounts  which  can 
be  assumed  upon  its  theory,  excluding  an}'  allowance  for  depreciation 
(except  that  for  1894  the  "maintenance"  allowance  is  increased,  to 
bring  it  —  the  general  allowance  —  up  to  the  minimum  estimate  b}'  the 
experts),  would  approximate  the  following  sums : 

In  1894 $230,000 

In  1895 340,000 

In  1896 115,000 


$685,000 
—  making  the  average  earnings  per  year,  say,  $228,333. 

In  reference  to  the  element  of  depreciation,  the  witness  Beggs  gives 
the  following  explanation : 

"  I  think  experience  has  demonstrated  that  the  utmost  life  that  can 
be  expected  from  the  best  road-bed  that  can  be  laid  to-day  would  be. 


MILWAUKEE   ELECTEIC   RAILWAY,  ETC.   CO.   V.   MILWAUKEE.     463 

at  the  outside,  ten  to  twelve  years,  when  it  would  have  to  be  almost 
entirely  renewed.  The  Milwaukee  Company  is  in  that  condition  to- 
da}',  because  of  the  different  periods  that  their  track  went  down,  and 
due  to  the  fact  that  it  was  not  all  put  down  at  one  time,  and  it  must 
now  of  necessity  commence  to  liay  about  12  miles  of  track  annualh', 
being  about  one-twelfth  of  its  total  mileage;  and  will  be  required, 
whether  they  wish  to  or  not,  to  lay  that  amount  annually  hereafter, 
and  will  thereby  be  keeping  their  tracks  fairly  up  to  the  standard. 
The  same  applies,  I  might  say,  to  the  equipment.  In  my  estimate  I 
have  calculated  that  the  Milwaukee  Company  must  do  this  year,  which, 
as  a  matter  of  fact,  it  is  doing,  what  it  did  last  year,  —  in  other  words, 
put  on  not  less  than  20  of  the  most  modern,  best-constructed  equip- 
ments, thereby  keeping  its  standard  up  to  the  minimum  it  has  now,  of 
240  equipments ;  because  I  think  it  is  fair  to  assume  that  the  average 
life  of  the  double  equipment,  taken  as  a  whole,  will  not  exceed  twelve 
years,  the  life  of  the  motor  being  somewhat  less  than  that,  and  that  of 
the  car  we  hope  may  exceed  it  possibly  several  years,  —  I  mean  the  car 
bodies  ;  but  that,  in  the  main,  we  hope  that  we  will  get  an  average  life 
of  twelve  years  out  of  them.  So,  taking  20  equipments  annually,  you 
would  keep  to  your  standard  of  240  equipments,  which  is  absolutely 
necessar}'  to  maintain  —  to  operate  —  the  Milwaukee  Street  Railway. 
I  mean  cars  complete,  with  motors  and  complete  electrical  equipment." 

For  the  causes  thus  stated,  within  general  rules  which  are  well 
known,  it  is  manifest  that  this  element  must  be  taken  into  account 
before  it  can  be  determined  that  earnings  derived  from  a  plant  are 
excessive ;  and  in  the  same  line  there  is  much  force  in  the  argument 
of  counsel  that  consideration  should  also  be  given  to  the  factor  of 
depreciation  by  amortization  of  franchises,  as  all  the  franchises  in 
question  terminate  in  the  year  1924.  The  latter  item,  if  allowed, 
would  be  a  matter  of  simple  computation ;  but  a  just  measure  of 
physical  depreciation  seems,  to  some  extent,  although  onl}-  partially, 
involved  in  provisions  for  maintenance,  and,  while  the  testimonj-  is 
very  full  and  instructive  upon  this  subject,  it  does  not  clear  the  case 
from  serious  diflSculties  in  the  way  of  stating  a  definite  ratio  or  sum 
for  such  allowance.  I  am,  however,  clearly  of  opinion  that  neither  of 
these  elements  is  essential  to  the  determination  of  the  issues  upon  any 
aspect  presented  by  the  testimony,  and  that  depreciation  may  be  left 
to  serve  as  an  important  factor  of  safety,  in  either  view. 

Second.  As  to  valuation:  For  purposes  of  the  company,  the  value 
of  the  propertj',  including  both  railway  and  lighting  plants,  appears  to 
have  been  placed  at  $14,250,000,  represented  by  the  issue  of  bonds 
for  $7,250,000;  preferred  stock,  $3,500,000;  and  common  stock 
$3,500,000 ;  but  this  aggregate  was  clearly  excessive,  after  excluding 
the  electric  lighting  department,  and  on  no  view  can  it  be  taken  as  the 
basis  for  the  present  consideration.  The  statements  of  the  actual  cost 
of  the  constituent  street  railway  properties,  including  the  cash  invest- 
ment for  improvements,  are  necessarily  complicated,  from  the  fact  that 


464    MILWAUKEE   ELECTRIC   RAILWAY,    ETC.    CO.   V.   MILWAUKEE. 

paj'raents  were  partly  made  in  stocks  and  bonds,  and  the  aggregate 
amount  varies  according  to  the  ratio  of  valuation  placed  upon  the 
bonds  alone,  —  in  two  statements  in  which  the  stock  is  excluded,  and 
in  one  statement  which  values  both  stock  and  bonds,  — the  minimum 
being  $9,024,107.85,  and  the  maximum  $11,313,829.84.  The  former 
amount  was  subsequentl}'  modified  (page  465,  Complainant's  Proof), 
making  the  statement  of  cost  $8,885,644.17;  and  as  this  excludes 
an}-  valuation  of  stock,  and  places  the  value  of  the  bonds  at  the  dis- 
count agreed  upon  between  the  parties,  which  also  seems  fair,  it  may 
justly  be  taken  as  representing  the  true  amount  invested.  But  adop- 
tion of  this  purchase  amount  does  not  meet  the  issue,  as  it  is  the  value 
of  the  investment,  and  not  the  amount  paid,  which  must  control.  On 
the  other  hand,  both  parties  introduce  testimony  placing  valuations 
upon  the  various  items  of  the  plant  as  it  exists  in  fact,  upon  the  basis 
of  its  reproduction  value.  This  amount,  as  stated  by  the  witnesses  for 
complainant,  aggregates  85,153,287.76;  while,  on  the  face  of  defend- 
ant's proofs,  the  value  of  the  tracks  and  equipment  is  placed  at 
$2,358,799  ;  the  real  estate  and  buildings  being  valued  separately, 
and  the  highest  valuation  of  the  real  estate  being  $236,949,  and  of  the 
buildings  $208,449,  making  the  aggregate  $2,804,197.  It  appears, 
however,  that  these  estimates  on  behalf  of  the  defendant  omit  27  miles 
of  track,  many  parcels  of  real  estate,  and  other  items,  so  that  counsel 
for  defendant  concedes  that  this  aggregate  should  be  increased  to 
$3,679,631.  The  wide  difference  in  these  amounts  is  mainly  due  to 
divergence  in  the  estimates  upon  tracks  and  equipment.  So  the 
amounts  on  real  estate  and  buildings,  after  allowance  for  the  omis- 
sions, would  appear  higher  on  the  valuations  submitted  b}'  the  defend- 
ant than  those  of  the  other  side.  For  the  valuation  of  tracks  and 
equipment,  the  defendant  relies  upon  the  estimate  made  b}*  Mr. 
Partenheimer,  a  witness  of  apparent  ability  and  experience  as  a  street 
railway  contractor,  engaged  in  business  at  Chicago ;  but  his  examina- 
tion of  the  plant  was  cursory,  being  made  within  three  da^'S,  and  could 
not  give  the  detailed  information  upon  which  a  just  estimate  for  this 
inquiry  must  be  based,  and  it  is  conceded  that  he  left  out  of  considera- 
tion many  important  items  (aside  from  the  error  in  mileage)  which 
should  enter  in  and  would  greatly  increase  the  amount  as  estimated  on 
his  basis.  Both  upon  its  face  and  by  reference  to  other  source  of  infor- 
mation, this  estimate  is  far  below  an\'  fair  valuation,  for  the  purpose  in 
view,  either  at  the  sum  stated  by  the  witness,  or  with  the  additions 
conceded  on  behalf  of  the  defendant ;  the  former  amount  being  in  fact 
$320,000  short  of  the  actual  cash  expenditures  by  the  company  for 
construction  and  equipment.  Opposed  to  this,  the  estimate  for  com- 
plainant is  made  by  Mr.  Clark,  an  expert  of  distinction  in  this  line, 
who  gave  weeks  to  the  examination,  with  the  aid  of  a  corps  of  assis- 
tants, and  presents  the  results  in  detailed  statements,  so  that  liis 
testimony  and  estimates  impress  me  as  well  founded  ;  and  they  are 
supplemented   and   supported   by  the   testimony  of  Mr.  Coffin,  Mr. 


MILWAUKEE   ELECTRIC   RAILWAY,   ETC.   CO.   V.   MILWAUKEE.    465 

Pa3-ne,  and  other  witnesses,  and  by  comparative  showing  of  mileage 
valuations  in  Massachusetts,  which  appear  in  the  noteworthy  system 
of  reports  published  bj-  that  State.  I  am  satisfied  that  the  property  of 
complainant  represents  a  value,  based  solel}'  upon  the  cost  of  reproduc- 
tion, exceeding  $5,000,000.  And  I  am  further  satisfied  that  this 
amount  is  not  the  true  measure  of  the  value  of  the  investment  in  the 
enterprise.  It  leaves  out  of  consideration  any  allowance  for  necessary 
and  reasonable  investment  in  purchase  of  the  old  lines  and  equipments, 
which  were  indispensajsle  to  the  contemplated  improvement,  but  of 
which  a  large  part  was  of  such  nature  that  it  does  not  count  in  the 
final  inventory.  No  allowance  enters  in  for  the  large  investment 
arising  out  of  the  then  comparatively  new  state  of  the  art  of  electric 
railways  for  a  large  sj'stem,  having  reference  to  electrical  equipment, 
weight  of  rails,  character  of  cars,  and  the  like,  of  which  striking  in- 
stance appears  in  the  fact  that  the  electric  motor  which  then  cost 
about  $2,500  can  now  be  obtained  for  $800  ;  so  that  work  of  this  class 
was  in  the  experimental  stage  in  many  respects,  and  the  expenditures 
by  the  pioneer  in  the  undertaking  may  not  fairly  be  gauged  by  the 
present  cost  of  reproduction.  Of  the  $5,000,000  and  over  paid  for  the 
acquisition  of  the  old  lines,  it  would  be  difBcult,  if  not  impossible,  from 
the  testimony,  to  arrive  at  an}*  fair  approximation  of  the  share  or 
amount  of  tangible  property  which  enters  into  the  valuation  in  this 
inventory.  It  does  appear  that  the  roadways  required  reconstruction 
with  new  rails  and  paving,  and  that  the  amount  stated  was  actually 
paid  by  the  investors,  making  their  investment  nearlj'  $9,000,000. 
How  much  of  this  ma}'  be  defined  or  apportioned  as  the  amount  which 
was  both  "  realh'  and  necessarily  invested  in  the  enterprise "  {vide 
Road  Co.  V.  Sandford,  supra)  I  have  not  attempted  to  ascertain, 
except  to  this  extent:  that  I  am  clearly  of  opinion  that  at  least 
$2,000,000  of  those  preliminary  expenditures  are  entitled  to  equi- 
table consideration,  as  so  invested,  beyond  the  reproduction  value,  if 
the  valuation  of  the  investment  is  not  otherwise  found  suflBcient  for  all 
the  purposes  of  this  case,  but  no  opinion  is  expressed  in  reference 
to  the  remaining  $1,885,644, 

Third.  The  final  inquiry,  whether  the  net  earnings  shown  are  in 
excess  of  or  equal  to  a  just  return  upon  the  investment,  presents 
no  serious  diflSculty,  under  the  premises  above  stated.  Assuming 
$5,000,000  as  the  basis  of  investment,  the  ratio  of  earnings  would 
be  as  follows :  (1)  At  the  extreme  computations  of  defendant,  the 
j^early  average  would  be  $364,000,  which  would  yield  .072  per  cent ; 
(2)  at  the  complainant's  figures,  after  adding  the  corrections  for  taxes, 
the  return  would  be  .033  per  cent ;  (3)  at  the  amounts  which  are  above 
stated  as  m}-  deductions  from  the  testimony,  the  yearly  average,  being 
$228,333,  would  make  .045  per  cent.  Assuming  $7,000,000  as  the 
basis,  the  ratio  of  earnings  would  be,  upon  each  of  said  versions,  as 
follows :  For  the  first,  .052  per  cent ;  for  the  second,  .023  per  cent ; 
for  the  third,  .032  per  cent. 

30 


466       METROPOLITAN  TRUST  CO.   V.   HOUSTON,   ETC.   RA.ILROAD. 

The  interest  rate  fixed  in  the  bonds  issued  by  the  company  is  5  per 
cent.  The  rate  which  prevails  in  this  market,  as  shown  b}-  the  un- 
controverted  testimon}',  is  6  per  cent  for  real  estate  mortgjiges  and 
like  securities.  If  the  $5,000,000  basis  be  adopted,  surely  a  better 
rate  must  be  afforded  for  the  risks  of  investment  than  can  be  obtained 
on  securities  of  this  class,  in  which  there  is  no  risk.  Upon  the  basis 
of  87,000,000,  which  is  more  logical  and  just,  the  5  per  cent  named  in 
the  bonds  is  clearly  not  excessive,  and  should  be  accepted  by  a  court 
of  equit}'  as  the  minimum  of  allowance ;  and,  ,even  upon  the  defend- 
ant's partial  showing,  the  return  would  be  less  than  one-quarter  per 
cent  above  that,  with  the  large  margin  for  depreciation  left  out  of 
account. 

I  am  of  opinion  that  the  testimony  is  not  only  convincing  in  support 
of  the  material  allegations  of  the  bill,  but  is  uncontradicted  and  con- 
clusive that  the  improved  service  received  by  the  public,  with  the 
universal  system  of  transfers,  is  well  worth  the  five-cent  rate  charged 
therefor ;  that  the  company  has  not  received  earnings  in  excess  of  an 
equitable  allowance  to  the  investors  for  the  means  necessarily  invested 
in  furnishing  such  service ;  that  enforcement  of  the  ordinance  would 
deprive  complainant  of  property  rights,  by  preventing  reasonable  com- 
pensation for  its  service  ;  and  that,  therefore,  the  ordinance  clearly 
violates  the  Constitution  of  the  United  States,  and  is  invalid.  Decree 
must  enter  accordingly,  and  for  an  injunction  as  prayed  in  the  bill. 


METROPOLITAN    TRUST    CO.    v.    HOUSTON    AND  TEXAS 
CENTRAL  RAILROAD  CO. 

Circuit  Court  of  United  States,  1898. 

[90  Fed.  Rep.  683.1] 

McCoRMiCK,  Circuit  Judge.  .  .  .  The  Houston  and  Texas  Central 
Railroad  Company,  the  successor  to  the  Houston  and  Texas  Central 
Railwa}'  Company,  has  a  mortgage  indebtedness  equal  to  about 
$34,000  to  the  mile  of  its  main  line,  and  has  stock  outstanding  to  the 
amount  of  $10,000,000,  making  its  stock  and  bonds  equal  to  the  sum 
of  about  $53,000  to  the  mile  of  its  main  line.  The  bill  in  this  case 
avers  that  the  defendant  company  and  its  predecessor  company  have 
necessarily  expended  in  cash  in  the  construction  and  equipment  and 
betterment  of  the  lines  of  the  defendant  company  about  $62,000  per 
mile  of  its  said  railways ;  that  the  lines  of  railway  of  the  defendant 
company  have  at  all  times  been  operated  as  economically  as  practi- 
cable ;  that  its  operating  expenses  have  at  all  times  been  as  reasonable 

1  This  COM  is  abridged — Ed. 


METROPOLITAN   TRUST   CO.   V.   HOUSTON,    ETC.   RAILROAD.       467 

and  low  in  amount  as  they  could  be  made  b}'  economy  and  judicious 
management ;  that  the  company  has  at  all  times  secured  the  services 
of  its  officers  and  employees  as  cheaply  as  practicable,  and  has  employed 
no  more  than  was  necessary,  and  at  fair  and  reasonable  rates  of 
pay  ;  that  it  has  at  all  times  secured  all  supplies,  material,  and  property 
of  every  character  used  in  the  operation  of  its  railway's  at  the  cheapest 
market  price,  and  at  rates  as  low  as  the  same  could  be  secured,  and 
has  secured  and  used  no  more  than  was  actually  necessary  for  the 
operation  of  its  railways.  Substantially  the  same  allegation  is  made 
in  the  cross  bill,  and  both  are  affirmed  and  sustained  by  affidavits  of 
competent  'witnesses  offered  on  the  hearing  of  this  motion.  The 
valuation  placed  upon  the  property  of  this  railroad  corporation  by  the 
railroad  commission  of  Texas  is,  in  round  numbers,  $21,000  per  mile. 
This  statement  shows  the  vast  difference  between  the  estimates  made 
by  and  on  behalf  of  the  railroad  company  and  the  estimates  made  by 
the  railroad  commission  of  the  value  of  the  railroad's  property  on 
which  it  is  entitled  to  earn  some  profit.  It  seems  to  be  clear  from  the 
answer  of  the  commission,  the  tone  of  the  affidavits  which  it  offers  in 
support  of  its  answer,  and  the  argument  of  the  attorney-general  and 
the  assistant  attorney-general  who  represented  it  on  this  hearing,  that 
in  estimating  the  value  of  this  railroad  property'  no  allowance  was 
made  for  the  favorable  location  of  the  same,  in  view  of  the  advance  in 
prosperity  of  the  country  through  which  it  runs,  and  the  increment  to 
its  value  due  to  the  settling,  seasoning,  and  permanent  establishment 
of  the  railway's,  and  to  the  established  business  and  the  good  will 
connected  with  its  business,  which  has  been  established  through  a  long 
series  of  years,  and  all  of  which  ought  reasonably'  to  be  considered  in 
fixing  the  value  of  the  property  and  the  capitalization  upon  which,  at 
least,  it  is  entitled  to  earn,  and  should  pay,  some  returns  b}-  the  way 
of  interest  or  dividends.  This  is  practically  the  oldest  railroad  in  the 
State.  A  few  miles  of  another  road  were  built  earlier,  but  this  road, 
running  throughout  the  whole  course  of  its  main  line  through  what  is 
now  the  most  populous  and  best  developed  portions  of  the  State,  and 
still  rapidly  increasing  in  population  and  development,  has  established 
a  business  that  would  not  and  could  not  be  disregarded  in  estimating 
the  value  of  the  railroad,  if  considered  solely  as  a  business  property 
and  venture.  It  cannot  be  so  considered,  because  of  its  quasi-public 
nature.  Its  duties,  its  obligations,  and  its  liability  to  control  are 
elements  that  must  be  considered.  As  popularly  expressed,  the  rights 
of  the  people  —  the  rights  of  shippers  who  use  it  as  a  carrier  —  have 
to  be  regarded ;  but,  as  judicially  expressed,  these  last  have  to  be  so 
regarded  as  not  to  disregard  the  inherent  and  reasonable  rights  of  the 
projectors,  proprietors,  and  operators  of  these  carriers.  It  is  settled 
that  a  State  has  the  right,  within  the  limitation  of  the  constitution,  to 
regulate  fares.  From  the  earliest  times  public  carriers  have  been  sub- 
ject to  similar  regulations  through  general  law  administered  b}-  the 
courts,   requiring   that  the  rates   for  carriage  should  be  reasonable. 


468       METROPOLITAN   TRUST   CO.   V.   HOUSTON,   ETC.   RAILROAD. 

having  regard  to  the  cost  to  the  carrier  of  the  service,  the  value  of  the 
service  to  the  shipper,  and  the  rate  at  which  such  carriage  is  performed 
by  other  like  carriers  of  similar  commodities  under  substantially 
similar  conditions.  But  neither  at  common  law  nor  under  the  railroad 
commission  law  of  Texas  can  the  courts  or  the  commission  compel 
the  carriers  to  submit  to  such  a  s\'stem  of  rates  and  charges  as  will  so 
reduce  the  earnings  below  what  reasonable  rates  would  produce  as  to 
destroy  the  property  of  the  carrier,  or  appropriate  it  to  the  benefit  of 
the  public.  The  cost  of  the  service  in  carrying  any  one  particular 
shipment  may  be  difficult  to  determine,  but  the  cost  to  the  carrier  of 
receiving,  transporting,  and  delivering  the  whole  volume  of  tonnage 
and  number  of  passengers  in  a  given  period  of  time  must  include,  as 
one  of  its  substantial  elements,  intei-est  on  the  value  of  the  property 
used  in  the  service.  In  countries  conditioned  as  Texas  has  been  and 
is,  such  a  railroad  property'  and  business  cannot  be  reproduced,  except 
substantially  in  the  same  manner  in  which  this  has  been  produced; 
that  is,  by  a  judicious  selection  of  location,  by  small  beginnings,  and 
gradual  advance  through  a  number  of  years,  more  or  less,  of  unpro- 
ductive growth.  The  particular  location  of  this  road,  of  course, 
cannot  be  reproduced,  and  it  cannot  be  appropriated  by  another 
private  or  quasi-public  corporation  carrier  b\-  the  exercise  of  the  State's 
power  of  eminent  domain.  And,  even  if  the  State  should  proceed  to 
expropriate  this  property  for  the  purpose  of  taking  the  same  to  itself 
for  public  use,  the  location  of  this  road  cannot  be  appropriated,  any 
more  than  any  other  property  right  of  a  natural  person  or  of  a  corpo- 
ration can  be  appropriated,  without  just  compensation.  It  is  therefore 
not  only  impracticable,  but  impossible  to  reproduce  this  road,  in  any 
just  sense,  or  according  to  any  fair  definition  of  those  terms.  And  a 
system  of  rates  and  charges  that  looks  to  a  valuation  fixed  on  so 
narrow  a  basis  as  that  shown  to  have  been  adopted  by  the  commission, 
and  so  fixed  as  to  return  only  a  fair  profit  upon  that  valuation,  and 
which  permits  no  account  for  betterments  made  necessary  b}'  the 
growth  of  trade,  seems  to  me  to  come  clearl}-  within  the  provision  of 
the  Fourteenth  Amendment  to  the  Constitution  of  the  United  States, 
which  forbids  that  a  State  shall  deprive  an}'  person  of  property  without 
due  process  of  law,  or  den}'  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws.  It  is  true  that  railroad  property  may  be 
so  improvidently  located,  or  so  improvidentU'  constructed  and  operated, 
that  reasonable  rates  for  carriage  of  freights  and  passengers  will  not 
produce  any  profit  on  the  investment.  It  is  also  true  that  man}'  rail- 
roads not  improvidently  located,  and  not  improvidently  constructed, 
and  not  improvidentlj'  operated  may  not  be  able,  while  charging 
reasonable  rates  for  carriage  of  freight,  to  earn  even  the  necessar}' 
running  expenses,  including  necessary  repairs  and  replacements.  And 
there  are  others,  or  may  be  others,  thus  constructed  and  conducted, 
which,  while  able  to  earn  operating  expenses,  are  not  able  to  earn  any 
appreciable  amount  of  interest  or  dividends  for  a  considerable  time 


METROPOLITAN   TRUST   CO.   V.   HOUSTON,    ETC.   RAILROAD.       469 

after  the  opening  of  their  roads  for  business.  This  is  true  now  of 
some  of  the  roads,  parties  to  tliese  bills.  At  one  time  or  another,  and 
for  longer  or  shorter  times,  it  has  been  true,  doubtless,  of  each  of  the 
roads  that  are  parties  to  these  bills.  Promoters  and  proprietors  of 
roads  have  looked  to  tlie  future,  as  they  had  a  right  to  do,  and  as  they 
were  induced  to  do  by  the  solicitations  of  tlie  various  communities 
through  which  they  run,  and  by  various  encouragements  offered  by  the 
State.  The  commission,  in  estimating  the  value  of  these  roads,  say 
that  they  included  interest  on  the  monej'  invested  during  the  period  of 
construction.  This  is  somewhat  vague,  but  the  "  period  of  construc- 
tion "  mentioned  is  probably  limited  to  the  time  when  each  section  of 
the  road  was  opened  to  the  public  for  business.  And  even  if  extended 
to  the  time  when  the  road  was  completed  to  Denison  and  to  Austin  in 
1873,  nearly  twenty  years  after  its  construction  was  begun  at  Houston, 
it  would  not  cover  all  of  the  time,  and  possibly  not  nearly  all  of  the  time, 
in  which  the  railroad  company  and  its  predecessors  have  lost  interest  on 
the  investment.  The  estimate  made  on  behalf  of  the  railroad  in  this 
case  of  the  cost  to  that  company  and  to  its  predecessor  compan}-  of  the 
railroad  property',  and  the  business  of  that  company  as  it  exists  to-day, 
may  not  be  exactly*  accurate, —  clearl}'  is  not  exactly  accurate;  but  it 
seems  to  me  that  it  is  not  beyond  the  fair  value  of  the  propert}",  as  it 
is  shown  to  have  been  built  up  and  constituted,  and  to  exist  to-day 
as  a  going  business  concern,  and  that  such  rates  of  fare  for  the  carriage 
of  persons  and  property  as  are  reasonable,  considered  with  reference 
to  the  cost  of  the  carriage  and  the  value  of  the  carriage  to  the  one  for 
whom  the  service  is  rendered,  cannot  be  reduced  by  the  force  of  State 
law  to  such  a  scale  as  would  appropriate  the  value  of  this  property  in 
any  measure  to  the  use  of  the  public  without  just  compensation  to  the 
owners  thereof,  and  would  deprive  the  owners  thereof  of  the  equal 
protection  of  the  law  guaranteed  by  the  Constitution  of  the  United 
States,  as  cited. 

It  seems  to  be  contended  that  the  case  of  the  Houston  and  Texas 
Central  Railroad  Compan}*  full}'  justifies  the  action  of  the  commission 
in  its  imposition  of  a  system  of  rates,  because,  as  it  urged,  it  has  made 
earnings  over  and  above  operating  expenses  sufficient  to  pay  the 
interest  on  its  outstanding  bonds,  and  has  a  small  surplus  of  a  few 
thousand  dollars  in  excess,  as  shown  by  its  return  to  the  commission 
of  the  operations  of  the  year  ending  the  30th  of  June,  1898 ;  in  other 
words,  it  has  paid  interest  on  $34,000  of  bonds  to  the  mile.  The 
return  referred  to  is  made  on  forms  submitted  by  the  commission,  and 
under  the  item  of  "operating  expenses"  only  ordinar}'  repairs  and 
replacements  are  allowed.  In  case  an  insufficient  wooden  bridge  is  re- 
placed b}'  an  adequate  iron  bridge,  that  is  treated  as  a  betterment,  and 
not  permitted  to  figure  in  the  returns  as  a  part  of  the  operating 
expenses.  The  bill  and  cross  bill  show  that,  if  such  betterments, 
which  can  only  be  made  or  procured  out  of  the  earnings  of  the  road, 
were  allowed  in  the  return  of  operating  expenses,  the  revenue  earned 


470  SMYTH   V.  AMES. 

and  rendered  as  net  revenue  would  not  have  been  equal,  by  several 
hundred  thousand  dollars,  to  the  interest  on  the  bonded  indebtedness  ; 
that  the  bonded  indebtedness  outstanding  against  this  road  being  in 
excess  of  the  value  fixed  by  the  commission,  to  the  extent  of  more 
than  50  per  cent,  the  company  has  no  means  of  providing  for  such 
betterments,  if  not  at  all  allowed  to  charge  them  at  any  time  against 
the  gross  earnings  of  the  road.  More  than  this,  it  is  shown  that  the 
road  has  never  at  any  time  paid  any  dividend  upon  its  stock.  On  the 
whole  case,  as  made  in  the  case  of  the  Houston  and  Texas  Central 
Railroad  Company,  it  seems  clear  to  me  that  the  system  of  rates 
adopted  and  enforced  by  the  commission  does  not  afford  to  the  owners 
of  this  property  the  equal  protection  of  the  law,  and  takes  from  the 
owners  and  stockholders  the  property  they  have  therein,  without  just 
compensation,  and  that,  therefore,  the  rates  must  be  held  to  be  un- 
reasonably low,  unjust,  and  confiscatory,  and  should  not  be  submitted 
to,  and  cannot  be  suffered  to  be  enforced.  As  already  said,  the  case 
made  for  relief  in  each  of  the  other  suits  seems  to  be  stronger  than  the 
case  of  the  Houston  and  Texas  Central  Railroad  Company ;  and  the 
evidence  appears  to  me  to  show  clearl}'  that  the  system  of  rates  im- 
posed is,  as  to  each  of  the  roads,  unreasonabh'  low,  unjust,  and 
confiscatory.  Therefore  the  prayer  of  the  bill  in  each  case  is  granted, 
to  the  extent  of  enjoining  the  roads  from  adopting  the  rates  heretofore 
promulgated  by  the  commission,  and  enjoining  the  commission  and  .the 
attorney-general  from  enforcing  the  same,  and  enjoining  all  persons 
claiming  thereunder  from  prosecuting  the  railroads,  or  any  of  the  offi- 
cers thereof,  for  the  non-observance  of  the  system  of  rates  heretofore 
promulgated  by  the  commission. 


SMYTH  V.  AMES. 
Supreme  Court  of  the  United  States,  1898. 

[169   U.  S.  466.1] 

Each  of  these  suits  was  brought  July  28,  1893,  and  involves  the  con- 
stitutionality of  an  Act  of  the  Legislature  of  Nebraska,  approved  by  the 
Govei-nor  April  12,  1893,  and  which  took  effect  August  1,  1893.  It 
was  an  Act  "to  regulate  railroads,  to  classify  freights,  to  fix  reason- 
able maximum  rates  to  be  charged  for  the  transportation  of  freights 
upon  each  of  the  railroads  in  the  State  of  Nebraska  and  to  provide  pen- 
alties for  the  violation  of  this  Act."  Acts  of  Nebraska,  1893,  c.  24 ; 
Compiled  Statutes  of  Nebraska,  1893,  c.  72,  Art.  12.  The  act  is  re- 
ferred to  in  the  record  as  House  Roll  33. 

^  This  case  is  abridged.  —  Ed. 


SMYTH  V.   AMES.  471 

These  cases  were  heard  at  the  same  time,  and  in  the  one  in  which 
the  Union  Pacific  Compan}^  the  St.  Joseph  Company,  the  Omaha 
Compan}',  and  the  Kansas  City  Compan}'  were  defendants,  it  was 
adjudged  in  the  Circuit  Court  —  Mr.  Justice  Brewer  presiding  — 
as  follows :  '  *  That  the  said  railroad  companies  and  each  and  every 
of  them,  and  said  receivers,  be  perpetually  enjoined  and  restrained 
from  making  or  publishing  a  schedule  of  rates  to  be  charged  by  them 
or  any  or  either  of  them  for  the  transportation  of  freight  on  and  over 
their  respective  roads  in  this  State  from  one  point  to  another  therein, 
whereby  such  rate  shall  be  reduced  to  those  prescribed  by  the  Act  of 
the  Legislature  of  this  State,  called  in  the  bill  filed  therein,  '  House 
Roll  33,'  and  entitled  '  An  Act  to  regulate  railroads,  to  classify  freights, 
to  fix  reasonable  maximum  rates  to  be  charged  for  the  transportation 
of  freight  upon  each  of  the  railroads  in  the  State  of  Nebraska,  and  to 
provide  penalties  for  the  violation  of  this  Act,'  approved  April  12, 
1893,  and  below  those  now  charged  by  said  companies  or  either  of 
them  or  their  receivers,  or  in  anywise  obeying,  observing,  or  conform- 
ing to  the  provisions,  commands,  injunctions,  and  prohibitions  of  said 
alleged  act ;  and  that  the  Board  of  Transportation  of  said  State  and 
the  members  and  secretaries  of  said  Board  be  in  like  manner  per- 
petually enjoined  and  restrained  from  entertaining,  hearing,  or  deter- 
mining any  complaint  to  it  against  said  railroad  companies  or  an}'  or 
either  of  them  or  their  receivers,  for  or  on  account  of  any  act  or  thing 
by  either  of  said  companies  or  their  receivers,  their  officers,  agents, 
servants,  or  employees,  done,  suffered,  or  omitted,  which  may  be  forbid- 
den or  commanded  by  said  alleged  act,  and  from  instituting  or  prose- 
cuting or  causing  to  be  instituted  or  prosecuted  any  action  or  proceeding, 
civil  or  criminal,  against  either  of  said  companies  or  their  receivers  for 
any  act  or  thing  done,  suffered,  or  omitted,  which  may  be  forbidden  or 
commanded  by  said  act,  and  particularly  from  reducing  its  present 
rates  of  charges  for  transportation  of  freight  to  those  prescribed  in 
said  act,  and  that  the  attorney-general  of  this  State  be  in  like  man- 
ner enjoined  from  bringing,  aiding  in  bringing,  or  causing  to  be  brought, 
any  proceeding  by  way  of  injunction,  mandamus,  civil  action,  or  in- 
dictment against  said  companies  or  either  of  them  or  their  receivers 
for  or  on  account  of  any  action  or  omission  on  their  part  commanded 
or  forbidden  by  the  said  act.  And  that  a  writ  of  injunction  issue  out 
of  this  court  and  under  the  seal  thereof,  directed  to  the  said  defend- 
ants, commanding,  enjoining,  and  restraining  them  as  hereinbefore  set 
forth,  which  injunction  shall  be  perpetual  save  as  is  hereinafter  pro- 
vided. And  it  is  further  declared,  adjudged,  and  decreed  that  the  act 
above  entitled  is  repugnant  to  the  Constitution  of  the  United  States, 
forasmuch  as  by  the  provisions  of  said  act  the  said  defendant  railroad 
companies  may  not  exact  for  the  transportation  of  freight  from  one 
point  to  another  within  this  State,  charges  which  yield  to  the  saia 
companies,  or  either  of  them,  reasonable  compensation  for  such  ser- 
vices.   It  is  further  ordered,  adjudged,  and  decreed  that  the  defend- 


472  4    SMYTH   V.    AMES. 

ants,  members  of  the  Board  of  Transportation  of  said  State,  may 
hereafter  when  the  circumstances  have  changed  so  that  the  rates  fixed 
in  the  said  act  shall  yield  to  the  said  companies  reasonable  compen- 
sation for  the  services  aforesaid,  appU'  to  this  court  by  supplemental 
bill  or  otherwise,  as  the}'  may  be  advised,  for  a  further  order  in  that 
behalf  It  is  further  ordered,  adjudged,  and  decreed  that  the  plaintiffs 
recover  of  the  said  defendants  their  costs  to  be  taxed  b}-  the  clerk." 

The  above  decree  was  in  accordance  with  the  prayer  for  relief.  A 
similar  decree  was  rendered  in  each  of  the  other  cases. 

The  present  appeals  were  prosecuted  b}'  the  defendants  constituting 
the  State  Board  of  Transportation,  as  well  as  by  the  defendants  who 
are  Secretaries  of  that  Board. 

Mr.  Justice  Harlan.  ...  It  is  said  b}'  the  appellants  that  the  local 
rates  established  b}'  the  Nebraska  statute  are  much  higher  than  in  the 
State  of  Iowa,  and  that  fact  shows  that  the  Nebraska  rates  are  rea- 
sonable. This  contention  was  thus  met  b}'  the  Circuit  Court :  "  It 
is,  however,  urged  b}-  the  defendants  that,  in  the  general  tariffs  of 
these  companies,  there  is  an  inequality ;  that  the  rates  in  Nebraska 
are  higher  than  those  in  adjoining  States,  and  that  the  reduction  by 
House  Roll  33  simpl}'  establishes  an  equality  between  Nebraska  and 
the  other  States  through  which  the  roads  run.  The  question  is  asked, 
Are  not  the  people  of  Nebraska  entitled  to  as  cheap  rates  as  the  peo- 
ple of  Iowa?  Of  course,  relatively  they  are.  That  is,  the  roads  may 
not  discriminate  against  the  people  of  any  one  State,  but  thej'  are  not 
necessaril}'  bound  to  give  absolutel}'  the  same  rates  to  the  people  of 
all  the  States ;  for  the  kind  and  amount  of  business  and  the  cost 
thereof  are  factors  which  determine  largely  the  question  of  rates,  and 
these  vav}'  in  the  several  States.  The  volume  of  business  in  one  State 
maj'  be  greater  per  mile,  while  the  cost  of  construction  and  of  main- 
tenance is  less.  Hence,  to  enforce  the  same  rates  in  both  States  might 
result  in  one  in  great  injustice,  while  in  the  other  it  would  only  be  rea- 
sonable and  fair.  Comparisons,  therefore,  between  the  rates  of  two 
States  are  of  little  value,  unless  all  the  elements  that  enter  into  the 
problem  are  presented.  It  may  be  true,  as  testified  by  some  of  the 
witnesses,  that  the  existing  local  rates  in  Nebraska  are  fort}'  per  cent 
higher  than  similar  rates  in  the  State  of  Iowa.  But  it  is  also  true 
tliat  the  mileage  earnings  in  Iowa  are  greater  that  in  Nebraska.  In 
Iowa  there  are  230  people  to  each  mile  of  railroad,  while  in  Nebraska 
there  are  but  190 ;  and,  as  a  general  rule,  the  more  people  there  are 
the  more  business  there  is.  Hence,  a  mere  difference  between  the 
rates  in  two  States  is  of  comparatively  little  significance."  64  Fed. 
Rep.  165.  In  these  views  we  concur,  and  it  is  unnecessary  to  add  any- 
thing to  what  was  said  by  the  Circuit  Court  on  this  point. 

It  is  further  said,  in  behalf  of  the  appellants,  that  the  reasonableness 
of  the  rates  established  by  the  Nebraska  statute  is  not  to  be  deter- 
mined by  the  inquiry  whether  such  rates  would  leave  a  reasonable  net 
profit  from   the  local  business   affected  thereby,    but  that  the   court 


SMYTH   V.   AMES.  473 

should  take  into  consideration,  among  other  things,  the  whole  business 
of  the  company,  that  is,  all  its  business,  passenger  and  freight,  inter- 
state and  domestic.  If  it  be  found  upon  investigation  that  the  profits 
derived  by  a  railroad  compan}'  from  its  interstate  business  alone  are 
sufficient  to  cover  operating  expenses  on  its  entire  line,  and  also  to 
meet  interest,  and  justify  a  liberal  dividend  upon  its  stock,  may  the 
Legislature  prescribe  rates  for  domestic  business  that  would  bring  no 
reward  and  be  less  than  the  services  rendered  are  reasonably  worth? 
Or,  must  the  rates  for  such  transportation  as  begins  and  ends  in  the 
State  be  established  with  reference  solely  to  the  amount  of  business 
done  by  the  carrier  wholly  within  such  State,  to  the  cost  of  doing  such 
local  business,  and  to  the  fair  value  of  the  property  used  in  conducting 
it,  without  taking  into  consideration  the  amount  and  cost  of  its  in- 
terstate business,  and  the  value  of  the  property  employed  in  it?  If 
we  do  not  misapprehend  counsel,  their  argument  leads  to  the  conclu- 
sion that  the  State  of  Nebraska  could  legally  require  local  freight 
business  to  be  conducted  even  at  an  actual  loss,  if  the  compan}'  earned 
on  its  interstate  business  enough  to  give  it  just  compensation  in  re- 
spect of  its  entire  line  and  all  its  business,  interstate  and  domestic. 
We  cannot  concur  in  this  view.  In  our  judgment,  it  must  be  held  that 
the  reasonableness  or  unreasonableness  of  rates  prescribed  by  a  State 
for  the  transportation  of  persons  and  property  wholly  within  its  limits 
must  be  determined  without  reference  to  the  interstate  business  done 
b}"  the  carrier,  or  to  the  profits  derived  from  it.  The  State  cannot 
justif}'  unreasonabl}'  low  rates  for  domestic  transportation,  considered 
alone,  upon  the  ground  that  the  carrier  is  earning  large  profits  on  its 
interstate  business,  over  which,  so  far  as  rates  are  concerned,  the  State 
has  no  control.  Nor  can  the  carrier  justify  unreasonably  high  rates 
on  domestic  business  upon  the  ground  that  it  will  be  able  only  in 
that  way  to  meet  losses  on  its  interstate  business.  So  far  as  rates  of 
transportation  are  concerned,  domestic  business  should  not  be  made 
to  bear  the  losses  on  interstate  business,  nor  the  latter  the  losses  oa 
domestic  business.  It  is  only  rates  for  the  transportation  of  persons 
and  property  between  points  within  the  State  that  the  State  can  pre- 
scribe ;  and  when  it  undertakes  to  prescribe  rates  not  to  be  exceeded 
by  the  carrier,  it  must  do  so  with  reference  exclusively  to  what  is  just 
and  reasonable,  as  between  the  carrier  and  the  public,  in  respect  of 
domestic  business.  The  argument  that  a  railroad  line  is  an  entirety ; 
that  its  income  goes  into,  and  its  expenses  are  provided  for,  out  of  a 
common  fund ;  and  that  its  capitalization  is  on  its  entire  line,  within 
and  without  the  State,  can  have  no  application  where  the  State  is  with- 
out authority  over  rates  on  the  entire  line,  and  can  only  deal  with  local 
rates  and  make  such  regulations  as  are  necessary  to  give  just  compen- 
sation on  local  business.  .  .  . 

In  our  opinion,  the  broad  proposition  advanced  by  counsel  involves 
misconception  of  the  relations  between  the  public  and  a  railroad  cor- 
poration.   It  is  unsound  in  that  it  practically  excludes  from  consideration 


-?74  SMYTH    V.    AMES. 

the  fair  value  of  the  property  used,  omits  altogether  anj'  consideration 
of  the  right  of  the  public  to  be  exempt  from  unreasonable  exactions, 
and  makes  the  interests  of  the  corporation  maintaining  a  public  high- 
way the  sole  test  in  determining  whether  the  rates  established  by  or 
for  it  are  such  as  may  be  rightfully  prescribed  as  between  it  and  the 
public.  A  railroad  is  a  public  highway,  and  none  the  less  so  because 
constructed  and  maintained  through  the  agency  of  a  corporation  de- 
riving its  existence  and  powers  from  the  State.  Such  a  corporation 
was  created  for  public  purposes.  It  performs  a  function  of  the  State. 
Its  authority  to  exercise  the  right  of  eminent  domain  and  to  charge 
tolls  was  given  primarily  for  the  benefit  of  the  public.  It  is  under 
governmental  control,  though  such  control  must  be  exercised  with  due 
regard  to  the  constitutional  guarantees  for  the  protection  of  its  property. 
Olcott  V.  The  Supervisors,  16  Wall.  678,  694  ;  Sinking  Fund  Cases,  99 
U.  S.  700,  719 ;  Cherokee  Nation  v.  Southern  Kansas  Railway,  135 
U.  S.  641,  657.  It  cannot,  therefore,  be  admitted  that  a  railroad  cor- 
poration maintaining  a  highway  under  the  authority  of  the  State  may 
fix  its  rates  with  a  view  solely  to  its  own  interests,  and  ignore  the  rights 
of  the  public.  But  the  rights  of  the  public  would  be  ignored  if  rates 
for  the  transportation  of  persons  or  property  on  a  railroad  are  exacted 
without  reference  to  the  fair  value  of  the  property  used  for  the  public 
or  the  fair  value  of  the  services  rendered,  but  in  order  simph'  that  the 
corporation  may  meet  operating  expenses,  pay  the  interest  on  its  obliga- 
tions, and  declare  a  dividend  to  stockholders. 

If  a  railroad  corporation  has  bonded  its  property  for  an  amount 
that  exceeds  its  fair  value,  or  if  its  capitalization  is  largely  fictitious, 
it  may  not  impose  upon  the  public  the  burden  of  such  increased  rates 
as  may  be  required  for  the  purpose  of  realizing  profits  upon  sucli  ex- 
cessive valuation  or  fictitious  capitalization ;  and  the  apparent  value 
of  the  property  and  franchises  used  by  the  corporation,  as  represented 
by  its  stocks,  bonds,  and  obligations,  is  not  alone  to  be  considered  when 
determining  the  rates  that  may  be  reasonabl}-  charged.  What  was  said 
in  Covington  &  Lexington  Turnpike  Road  Co.  v.  Sandford,  164  U.  S. 
578,  596,  597,  is  pertinent  to  the  question  under  consideration.  It  was 
there  observed  :  "It  cannot  be  said  that  a  corporation  is  entitled,  as 
of  right,  and  without  reference  to  the  interests  of  the  public,  to  realize 
a  given  per  cent  upon  its  capital  stock.  When  the  question  arises 
whether  the  Legislature  has  exceeded  its  constitutional  power  in  pre- 
scribing rates  to  be  charged  by  a  corporation  controlling  a  public  high- 
way, stockholders  are  not  the  only  persons  whose  rights  or  interests 
are  to  be  considered.  'I'he  rights  of  the  public  are  not  to  be  ignored. 
It  is  alleged  here  that  the  rates  prescribed  are  unreasonable  and  un- 
just to  the  company'  and  its  stockholders.  But  that  involves  an  in- 
quiry as  to  what  is  reasonable  and  just  for  the  public.  .  .  .  The  public 
cannot  properly  be  subjected  to  unreasonable  rates  in  order  simpl}-  that 
stockholders  may  earn  dividends.  The  Legislature  has  the  authority, 
in  every  case,  where  its  power  has  not  been  restrained  by  contract, 


SMYTH   V.   AMES.  475 

tx>  proceed  upon  the  ground  that  the  public  may  not  rightfully  be  re- 
quired to  submit  to  unreasonable  exactions  for  the  use  of  a  public 
highway  established  and  maintained  under  legislative  authority.  If  a 
corporation  cannot  maintain  such  a  highway  and  earn  dividends  for 
stockholders,  it  is  a  misfortune  for  it  and  them  which  the  Constitution 
does  not  require  to  be  remedied  by  imposing  unjust  burdens  upon  the 
public.  So  that  the  right  of  the  public  to  use  the  defendant's  turnpike 
upon  pa^'ment  of  such  tolls  as  in  view  of  the  nature  and  value  of  the 
services  rendered  by  the  compan}'  are  reasonable,  is  an  element  in  the 
general  inquiry  whether  the  rates  established  by  law  are  unjust  and  un- 
reasonable." 

A  corporation  maintaining  a  public  highway,  although  it  owns  the 
property  it  employs  for  accomplishing  public  objects,  must  be  held  to 
have  accepted  its  rights,  privileges,  and  franchises  subject  to  the  con- 
dition that  the  government  creating  it,  or  the  government  within  whose 
limits  it  conducts  its  business,  may  by  legislation  protect  the  people 
against  unreasonable  charges  for  the  services  rendered  by  it.  It  can- 
not be  assumed  that  any  railroad  corporation,  accepting  franchises, 
rights,  and  privileges  at  the  hands  of  the  public,  ever  supposed  that  it 
acquired,  or  that  it  was  intended  to  grant  to  it,  the  power  to  construct 
and  maintain  a  public  highway  simply  for  its  benefit,  without  regard  to 
the  rights  of  the  public.  But  it  is  equally  true  that  the  corporation 
performing  such  public  services  and  the  people  financially  interested 
in  its  business  and  affairs  have  rights  that  may  not  be  invaded  by 
legislative  enactment  in  disregard  of  the  fundamental  guarantees  for 
the  protection  of  property.  The  corporation  may  not  be  required  to 
use  its  propert}-  for  the  benefit  of  the  public  without  receiving  just  com- 
pensation for  the  services  rendered  b}'  it.  How  such  compensation 
may  be  ascertained,  and  what  are  the  necessary  elements  in  such  an 
inquiry,  will  always  be  an  embarrassing  question.  As  said  in  the  case 
last  cited:  "Each  case  must  depend  upon  its  special  facts  ;  and  when 
a  court,  without  assuming  itself  to  prescribe  rates,  is  required  to  de- 
termine whether  the  rates  prescribed  by  the  Legislature  for  a  corpora- 
tion controlling  a  public  highway  are,  as  an  entirety,  so  unjust  as  to 
destroy  the  value  of  its  property  for  all  the  purposes  for  which  it  was 
acquired,  its  duty  is  to  take  into  consideration  the  interests  both  of  the 
public  and  of  the  owner  of  the  property,  together  with  all  other  circum- 
stances that  are  fairly  to  be  considered  in  determining  whether  the 
Legislature  has,  under  the  guise  of  regulating  rates,  exceeded  its  con- 
stitutional authority,  and  practically  deprived  the  owner  of  property 
without  due  process  of  law.  .  .  .  The  utmost  that  any  corporation 
operating  a  public  highway  can  rightfully  demand  at  the  hands  of  the 
Legislature,  when  exerting  its  general  powers,  is  that  it  receive  what, 
under  all  the  circumstances,  is  such  compensation  for  the  use  of  its  prop- 
ert}'  as  will  be  just  both  to  it  and  to  the  public." 

We  hold,  however,  that  the  basis  of  all  calculations  as  to  the  reason- 
ableness of  rates  to  be  charged  by  a  corporation  maintaining  a  highway 


476  SMYTH   V.   AMES. 

under  legislative  sanction  must  be  the  fair  value  of  the  propert}'  being 
used  b}-  it  for  the  convenience  of  the  public.  And  in  order  to  ascertain 
that  value,  the  original  cost  of  construction,  the  amount  expended  in 
permanent  improvements,  the  amount  and  market  value  of  its  bonds 
and  stock,  the  present  as  compared  with  the  original  cost  of  construc- 
tion, the  probable  earning  capacity  of  the  property  under  particular 
rates  prescribed  by  statute,  and  the  sum  required  to  meet  operating  ex- 
penses, are  all  matters  for  consideration,  and  are  to  be  given  such 
weight  as  may  be  just  and  right  in  each  case.  We  do  not  sa}-  that  there 
may  not  be  other  matters  to  be  regarded  in  estimating  the  value  of  the 
property.  What  the  company  is  entitled  to  ask  is  a  fair  return  upon 
the  value  of  that  which  it  employs  for  the  public  convenience.  On  the 
other  hand,  what  the  public  is  entitled  to  demand  is  that  no  more  be 
exacted  from  it  for  the  use  of  a  public  highway  than  the  services  ren- 
dered by  it  are  reasonably  worth.  But  even  upon  this  basis,  and  deter- 
mining the  probable  effect  of  tlie  act  of  1893  by  ascertaining  what  could 
have  been  its  effect  if  it  had  been  in  operation  during  the  three  years 
immediately'  preceding  its  passage,  we  perceive  no  ground  on  the  record 
for  reversing  the  decree  of  the  Circuit  Court.  On  the  contrar}',  we  are 
of  opinion  that  as  to  most  of  the  companies  in  question  there  would 
have  been,  under  such  rates  as  were  established  b}-  the  act  of  1893,  an 
actual  loss  in  each  of  the  years  ending  June  30,  1891,  1892,  and  1893  ; 
and  that,  in  the  exceptional  cases  above  stated,  when  two  of  the  com- 
panies would  have  earned  something  above  operating  expenses,  in 
particular  3ears,  the  receipts  or  gains,  above  operating  expenses,  would 
have  been  too  small  to  affect  the  general  conclusion  that  the  act,  if  en- 
forced, would  have  deprived  each  of  the  railroad  companies  involved 
in  these  suits  of  the  just  compensation  secured  to  them  b}-  the  Con- 
stitution. Under  the  evidence  there  is  no  ground  for  saying  that 
the  operating  expenses  of  any  of  the  companies  were  greater  than 
necessary. 

Perceiving  no  error  on  the  record  in  the  light  of  the  facts  presented 
to  the  Circuit  Court, 

The  decree  in  each  case  must  he  affirmed} 

1  Compare:  Water  Works  v.  Schottler,  110  U.  S. 347  ;  Railroad  Commission  Cases, 
116  U.  S.  307 ;  R.  R.  v.  Illinois,  118  U.  S.  557  ;  R.  R.  v.  Minn.,  134  U.  S.  418  ;  Reagan 
V.  Trust  Co.,  154  U.  S.  362;  R.  R.  i;.  GiU,  156  U.  S.  649;  Turnpike  v.  Sandford,  164 
U.  S.  578  ;  Land  Co.  v.  City,  174  U.  S.  739.  —Ed. 


MINNEAPOLIS   V.-ST.  LOUIS  KAILROAD   COMPANY.  477 

MINNEAPOLIS  v.  ST.  LOUIS  RAILROAD  COMPANY. 
Supreme  Court  op  the  United  States,  1902. 

[186  U.  S.  257.1J 

Mr.  Justice  Brown.  True,  it  may  be  difficult  to  segregate  hard 
coal  in  carload  lots  from  all  other  species  of  freight,  and  determine  the 
exact  cost  to  the  company ;  but  upon  the  other  hand,  the  Commission, 
in  considering  a  proper  reduction  upon  a  certain  class  of  freight,  ought 
not  to  be  embarrassed  by  any  difficulties  the  companies  vsxa.y  experience 
in  proving  that  the  rates  are  unreasonably  low.  The  charges  for  the 
carriage  of  freight  of  different  kinds  are  fixed  at  different  rates  according 
to  their  plassification,  and  this  difference,  presumabl}^  at  least,  is  gauged 
to  some  extent  bj*  a  difference  in  the  cost  of  transportation,  as  well  as 
the  form,  size  and  value  of  the  packages  and  the  cost  of  handling  them. 
Notwithstanding  the  evidence  of  the  defendant  that,  if  the  rates  upon  all 
merchandise  were  fixed  at  the  amount  imposed  b}'  the  Commission  upon 
coal  in  carload  lots,  the  road  would  not  pay  its  operating  expenses,  it 
may  well  be  that  the  existing  rates  upon  other  merchandise,  which  are 
not  disturbed  by  the  Commission,  may  be  sufficient  to  earn  a  large 
profit  to  the  companj',  though  it  may  earn  little  or  hothing  upon  coal  in 
carload  lots.  In  Smyth  v.  Ames,  169  U.  S.  466,  we  expressed  the 
opinion  (page  541)  that  the  reasonableness  or  unreasonableness  of  rates 
prescribed  by  a  State  for  the  transportation  of  persons  or  property 
wholly  within  its  limits,  must  be  determined  without  reference  to  the 
interstate  business  done  by  the  carrier,  or  the  profits  derived  from  it, 
but  it  by  no  means  follows  that  the  companies  are  entitled  to  earn  the 
same  percentage  of  profits  upon  all  classes  of  freight  carried.  It  often 
happens  that,  to  meet  competition  from  other  roads  at  particular  points, 
the  companies  themselves  fix  a  disproportionately-  low  rate  upon  certain 
classes  of  freight  consigned  to  these  points.  The  right  to  permit  this 
to  be  done  is  expressly  reserved  to  the  Interstate  Commerce  Commis- 
sion by  section  4  of  that  act,  notwithstanding  the  general  provisions  of 
the  long  and  short  haul  clause,  and  has  repeatedly  been  sanctioned  by 
decisions  of  this  court.  While  we  never  have  decided  that  the  Com- 
mission may  compel  such  reduction's,  we  do  not  think  it  beyond  the 
power  of  the  state  commission  to  reduce  the  freight  upon  a  particular 
article,  provided  the  companies  are  able  to  earn  a  fair  profit  upon  their 
entire  business,  and  that  the  burden  is  upon  them  to  impeach  the  action 
of  the  Commission  in  this  particular.  As  we  said  in  Smyth  v.  Ames, 
(page  547),  "What  the  companj^  is  entitled  to  ask  is  a  fair  return  upon 
the  value  of  that  which  it  emploj's  for  the  public  convenience.  On  the 
other  hand,  what  the  public  is  entitled  to  demand  is  that  no  more  be  ex- 
acted from  it  for  the  use  of  a  public  highway  than  the  services  rendered 
b\^  it  are  reasonably  worth."  The  very  fact  that  the  commission,  while 
fixing  the  rate  to  Boyd  at  S2.48,  within  two  cents  of  the  amount  there- 
^  Only  an  extract  is  printed.  —  Ed. 


478  OZARK-BELL   TELEPHONE   COMPANY  V.    SPKINGFIELD. 

tofore  charged  by  the  companies  themselves,  gradually  reduced  that 
rate  in  proportion  to  the  mileage,  to  Norwood,  where  it  was  fixed  at 
$1.67,  while  the  company  charged  an  arbitrary  rate  of  $2.50  to  Norwood, 
and  to  all  the  stations  between  Norwood  and  Boyd,  tends,  at  least,  to 
show  that  the  rates  were  fixed  upon  a  more  reasonable  principle  than 
that  applied  by  the  companies. 


OZARK-BELL  TELEPHONE  COMPANY  v.  SPP.INGFIELD. 
CiBCurr  Court  of  the  United  States,  1905. 

[140  Fed.  666.1] 

In  Equity.    On  demurrer  to  bill. 

Marshall,  D.  J.  3.  It  is  not  necessary  that  the  complainant  should 
state  anj'  facts  to  show  that  the  rates  fixed  by  it  are  reasonable.  The 
court  is  not  called  on  to  express  any  opinion  as  to  those  rates.  It  is 
suflScient  if  the  facts  that  show  the  ordinance  rates  to  be  unreasonable 
are  pleaded,  and  those  facts  I  think  appear  with  sufficient  certainty. 
The  complainant  was  not  called  on  to  allege  the  cost  of  the  service  ren- 
dered to  any  particular  subscriber.  From  the  nature  of  the  business, 
cost  to  the  complainant  was  in  furnishing  facilities  for  the  use  of  its 
group  of  subscribers,  and  that  cost  could  not  be  estimated  by  the  fre- 
quency with  which  an}'  special  subscriber  availed  himself  of  the  facili- 
ties extended.  The  only  way  the  question  of  cost  and  compensation 
could  be  presented  was  by  aggregates,  and  that  the  complainant  has 
done.  The  injur}'  to  the  complainant  resulting  from  an  enforcement  of 
the  ordinance  rates  is  sufficiently  shown  b}'  the  averments  that  they  are 
less  than  the  rates  theretofore  enforced,  and  will  not  yield  a  sufficient 
sum  to  paj'  the  cost  of  operation  and  maintenance ;  the  sum  yielded  by 
the  original  rates  being  barely  sufficient  for  that  purpose. 

The  demurrer  must  be  overruled,  and  as  the  bill  is  sworn  to  posi- 
tivel}',  and  the  only  opposition  to  the  injunction  sought  is  by  the  way 
of  demurrer,  the  temporary  injunction  will  issue. 

1  Only  one  point  is  printed.  —  Ed. 


KENNEBEC   WATER   COMPANY  V.   WATERVILLE.  479 

KENNEBEC  WATER  COMPANY  v.  WATERVILLE. 

Supreme  Court  of  Maine,  1904. 

[95  Me.  185.1] 

Instructions  to  appraisers  given. 

Savage,  J.  The  basis  of  all  calculation  as  to  the  reasonableness  of 
rates  to  be  charged  by  a  public  service  corporation  is  the  fair  value  of 
the  property  used  by  it  for  the  convenience  of  the  public.  At  the  same 
time,  the  public  have  the  right  to  demand  that  the  rates  shall  be  no 
higher  than  the  services  are  worth  to  them,  not  in  the  aggregate,  but 
as  individuals.  Summarized,  these  elemental  principles  are  the  right 
of  the  company  to  derive  a  fair  income,  based  upon  the  fair  value  of 
the  propertj'  at  the  time  it  is  being  used  for  the  public,  taking  into  ac- 
count the  cost  of  maintenance  or  depreciation  and  current  operating 
expenses,  and  the  right  of  the  public  to  have  no  more  exacted  than  the 
services  in  themselves  are  worth.  The  reasonableness  of  the  rate  may 
also  be  affected  for  a  ihmc  by  the  degree  of  hazard  to  which  the  orig- 
inal enterprise  was  naturally  subjected;  that  is,  such  hazard  only  as 
may  have  been  justly  contemplated  by  those  who  made  the  original  in- 
vestment, but  not  unforeseen  or  emergent  risks.  And  such  allowance 
may  be  made  as  is  demanded  by  an  ample  and  fair  public  policy.  If 
allowance  be  sought  on  account  of  this  element,  it  would  be  permis- 
sible at  the  same  time  to  inquire  to  what  extent  the  company  has  already 
received  income  at  rates  in  excess  of  what  would  otherwise  be  reason- 
able, and  thus  has  already  received  compensation  for  this  hazard.  In 
determining  the  present  value  of  the  company's  plant,  the  actual  con- 
struction cost  thereof,  with  proper  allowances  for  depreciation,  is  legal 
and  competent  evidence,  but  it  is  not  conclusive  or  controlling.  The 
request  that  "  under  no  circumstances  can  the  value  of  the  plant  be  held 
to  exceed  the  cost  of  producing  at  the  present  time  a  plant  of  equal 
capacity  and  modern  design"  should  not  be  given.  Among  other 
things,  it  leaves  out  of  account  the  fact  that  it  is  the  plant  of  a  going 
concern,  and  seeks  to  substitute  one  of  the  elements  of  value  for  the 
Pleasure  of  value  itself. 

1  Only  one  of  the  many  points  made  in  this  notable  opinion  is  printed.  —  Ed. 


480  PENNSYLVANIA   R.R.   CO.   V.   PHILADELPHIA   COUNTY. 


PENNSYLVANIA  RAILROAD  COMPANY  v.   PHILADELPHIA 

COUNTY. 

Supreme  CciJEx  of  Pennsylvania,   1908. 

[220  Pa.  St.  100.1] 

Bill  in  equity  for  an  injunction  to  restrain  the  county  of  Philadel- 
phia from  the  collection  of  an}'  penalt}'  imposed  by  the  act  of  April  5, 
1907,  for  failure  to  comply  with  its  provisions  by  charging  passengers 
upon  certain  lines  in  excess  of  the  fares  therein  provided. 

Opinion  by  Mr.  Chief  Justice  Mitchell,  Januar}'  20,  1908. 

Another  objection  to  the  method  pursued  in  the  investigation  of  this 
subject  is  that  the  court  confined  the  inquiry  to  the  passenger  traffic 
instead  of  taking  into  consideration  the  entire  traffic  of  every  kind  as 
appellant  claims  should  be  done.  This  is  the  most  urgently  pressed 
of  the  appellant's  points,  but  it  does  not  carrj*  conviction.  It  would 
be  sufficient  answer  to  say  that  the  legislature  itself  in  the  act  of  1907 
has  treated  the  passenger  traffic  as  a  separate  and  independent  subject 
of  examination  and  regulation.  If  the  legislature  ma}'  do  that  in  as- 
certaining whether  the  charter  franchise  is  injurious  to  the  citizens  of 
the  commonwealth  why  may  not  the  courts  do  the  same  in  ascertain- 
ing whether  injustice  has  been  done  to  the  corporators?  Both  are 
elements  to  be  considered,  and  both  are  powers  exercised  under  the 
same  section  of  the  constitution.  But  independenth'  of  this,  true  bus- 
iness principles  require  that  the  passenger  and  freight  traffic  not  only 
ma}',  but  should  be  separately  considered.  The  intelligent  busi- 
ness of  the  world  is  done  in  that  way.  Every  merchant  and  manu- 
facturer examines  and  ascertains  the  unprofitable  branches  of  his 
business  with  a  view  to  reducing  or  cutting  them  off  entirely,  and  there 
is  no  reason  why  a  railroad  or  other  corporation  should  not  be  per- 
mitted to  do  the  same  thing  as  long  as  its  substantial  corporate  duties 
under  its  franchise  are  performed.  While  the  public  has  certain  rights 
which  in  the  case  of  conflict  must  prevail,  yet  it  must  not  be  forgotten 
that  even  so-called  public  service  corporations  are  private  property 
organized  and  conducted  for  private  corporate  profit.  And  unless  nec- 
essary for  the  fulfillment  of  their  corporate  duties  they  should  not  be 
required  to  do  any  part  of  their  business  in  an  unbusinesslike  way 
with  a  resulting  loss.  If  part  is  unprofitable  it  is  neither  good  business 
nor  justice  to  make  it  more  so  because  the  loss  can  be  offset  by  profit 
on  the  rest  To  concede  that  principle  would,  as  the  court  below  indi- 
cated, permit  the  legislature  to  compel  the  carriage  of  passengers  prac- 
tically for  nothing  though  the  inexorable  result  would  be  that  freiglit 
must  pay  inequitable  rates  that  passenger  travel  may  be  cheap.     The 

1  Only  one  opinion  is  printed.  —  Ed. 


KNOXVILLE   V.    KNOXVILLE  WATER  COMPANY.  431 

corporation  is  entitled  to  make  a  fair  profit  on  every  branch  of  its  busi- 
ness subject  to  the  limitation  that  its  corporate  duty  must  be  performed 
even  though  at  a  loss.  Wliat  is  a  fair  profit  is,  as  already  said,  a 
highly  complicated  and  difl3cult  question.  The  learned  court  belovir 
availed  themselves  of  all  the  best  evidence  that  was  offered  or  shown  to 
be  attainable,  considered  it  with  exemplary  patience  and  care,  and  their 
conclusion  that  the  enforcement  of  the  act  of  1907  against  the  com- 
plainant would  do  injustice  to  the  corporators  is  beyond  just  criticism. 

Decree  affirmed. 


KNOXVILLE  V.  KNOXVILLE  WATER  COMPANY. 
Supreme  Court  of  the  United  States,  1909. 

[212    U.  S.  1.] 

The  facts,  which  involve  the  constitutional  validity  of  an  ordinance 
of  the  city  of  Knoxville  fixing  maximum  rates  to  be  charged  for  water 
by  the  defendant  water  compan}*,  are  stated  in  the  opinion. 

Mr.  Justice  Moodt.  We  are  also  of  opinion  that  the  master  and 
the  court  erroneously  excluded  evidence  which  had  an  important  bear- 
ing upon  the  true  earning  capacity  of  the  compan}'  under  the  ordinance. 
A  clear  appreciation  of  this  error  can  be  best  obtained  by  a  comprehen- 
sive review  of  the  hearing.  The  company's  original  case  was  based 
upon  an  elaborate  analysis  of  the  cost  of  construction.  To  arrive  at 
the  present  value  of  the  plant  large  deductions  were  made  on  account 
of  the  depreciation.  This  depreciation  was  divided  into  complete  de- 
preciation and  incomplete  depreciation.  The  complete  depreciation 
represented  that  part  of  the  original  plant  which  through  destruction  or 
obsolescence  had  actually'  perished  as  useful  propert}'.  The  incomplete 
depreciation  represented  the  impairment  in  value  of  the  parts  of  the 
plant  which  remained  in  existence  and  were  continued  in  use.  It  was 
urgentl}*^  contended  that  in  fixing  upon  the  value  of  the  plant  upon  which 
the  company  was  entitled  to  earn  a  reasonable  return  the  amounts  of 
complete  and  incomplete  depreciation  should  be  added  to  the  present 
value  of  the  surviving  parts.  The  court  refused  to  approve  this  method, 
and  we  think  properly  refused.  A  water  plant,  with  all  its  additions, 
begins  to  depreciate  in  value  from  the  moment  of  its  use.  Before  com- 
ing to  the  question  of  profit  at  all  the  company  is  entitled  to  earn  a 
suflScient  sum  annually  to  provide  not  only  for  current  repairs  but  for 
making  good  the  depreciation  and  replacing  the  parts  of  the  property 
when  they  come  to  the  end  of  their  life.  The  company  is  not  bound 
to  see  its  property  gradually  waste,  without  making  provision  out  of 
earnings  for  its  replacement.  It  is  entitled  to  see  that  from  earnings 
the  value  of  the  propert}'  invested  is  kept  unimpaired,  so  that  at  the 
end  of  any  given  term  of  years  the  original  investment  remains  as  it 
was  at  the  beginning.     It  is  not  only  the  right  of  the  company  to  make 

31 


482  KNOXVILLE   V.   KNOXVILLE  WATER   COMPANY. 

such  a  provision,  but  it  is  its  duty  to  its  bond  and  stockholders,  and, 
in  the  case  of  a  public  service  corporation  at  least,  its  plain  duty  to  the 
public.  If  a  different  course  were  pursued  the  only  method  of  provid- 
ing for  replacement  of  property  which  has  ceased  to  be  useful  would  be 
the  investment  of  new  capital  and  the  issue  of  new  bonds  or  stocks. 
This  course  would  lead  to  a  constantl}'  increasing  variance  between 
present  value  and  bond  and  stock  capitalization  —  a  tendenc}'  which 
would  inevitably  lead  to  disaster  either  to  the  stockholders  or  to  the 
public,  or  both.  If,  however,  a  company  fails  to  perform  this  plain  duty 
and  to  exact  sufficient  returns  to  keep  the  investment  unimpaired, 
whether  this  is  the  result  of  unwarranted  dividends  upon  over-issues  of 
securities,  or  of  omission  to  exact  proper  prices  for  the  output,  the 
fault  is  its  own.  When,  therefore,  a  public  regulation  of  its  prices 
comes  under  question  the  true  value  of  the  propert}'  then  employed  for 
the  purpose  of  earning  a  return  cannot  be  enhanced  by  a  consideration 
of  the  errors  in  management  which  have  been  committed  in  the  past.^ 

^  Onl/  one  point  is  printed.  —  Ed. 


FITCHBUKG  KAILROAD   V.   GAGK  483 


CHAPTER  VIII. 

PROHIBITION  OF  UNJUST  DISCRIMINATION. 


FITCHBURG  RAILROAD  v.  GAGE. 
Supreme  Judicial  Court  op  Massachusetts,  1859. 

[12  Gray,  393.] 

Action  of  contract  upon  an  account  annexed  against  Gage,  Hit- 
tinger  &  Company  for  the  transportation  of  ice  from  Fresh  and  Spy 
Ponds  to  Charlestown,  over  that  portion  of  the  plaintiff's  railroad  which 
was  formerly  the  Charlestown  Branch  Railroad,  and  from  Groton  to 
Charlestown  over  that  portion  which  has  always  been  known  as  the 
Fitchburg  Railroad.     The  case  was  referred  to  an  auditor,  to  whose 


484  nxcHBUEG  railroad  v.  gage. 

report  the  defendants  took  exceptions  presenting  pure  questions  of  Jaw, 
and  was  thereupon  reserved  by  Bigeloio,  J.,  for  the  consideration  of  the 
whole  court,  and  is  stated  in  the  opinion. 

S.  Bartlett  <&  D.  Thaxter^  for  the  defendants. 

B.  Choate  <b  II.  C.^  Hutchins,  for  the  plaintiffs. 

Merrick,  J.  This  action  is  brought  to  recover  the  balance  of  the 
account  annexed  to  the  writ.  The  defendants  admit  the  transportation 
for  them  of  all  the  ice  charged  to  them  in  the  account,  and  that  the  sev- 
eral items  contained  in  it  relative  to  the  service  performed  for  them  are 
correct.  But  the}'  insist  that  the  rate  of  compensation  claimed  is  too 
large,  and  that  the  charges  ouglft  to  be  reduced.  They  have  also  filed 
«n  account  in  set-off,  claiming  to  recover  back  the  amount  of  an  alleged 
^verpa3'ment  made  b}'  them  for  similar  services  in  the  transportation  of 
other  quantities  of  ice  belonging  to  them. 

Their  claim  to  be  entitled  to  a  diminution  in  the  amount  of  charges 
in  the  plaintiffs*  account,  and  to  a  recover}'  of  the  sum  stated  in  their 
account  in  set-off,  both  rest  upon  the  same  ground.  They  contended 
and  offered  to  prove  at  the  hearing  before  the  auditor,  that  while  the 
plaintiffs  were  transporting  the  ice  they  were  at  the  same  time  hauling 
over  the  same  portion  of  their  road  various  quantities  of  bricks  for  other 
parties  ;  that  ice  and  bricks  were  of  the  same  class  of  freight,  and  that 
ice  was  as  low  a  class  of  freight  as  bricks  in  regard  to  the  risk  and 
hazard  of  transportation  ;  and  that  while  they  charged  the  defendants 
fifty  cents  per  ton  for  the  transportation  of  ice,  they  charged  other  par- 
ties only  twenty  cents  per  ton  for  a  like  service  in  reference  to  bricks. 

The  defendants  contended  that  they  were  entitled  to  maintain  their 
claim  upon  two  grounds :  first,  under  the  provisions  in  the  plaintiffs' 
act  of  incorporation  ;  and,  secondly,  upon  the  general  principle  that  as 
common  carriers  they  were  bound  and  required  to  transport  every  species 
of  freight  of  the  same  class  for  an}'  and  all  parties  at  the  same  rate  of 
compensation  ;  and  that  they  had  therefore  no  right  to  charge  any  greater 
sum  for  the  transportation  of  ice  than  that  for  which  the}-  had  actually 
carried  bricks  for  other  parties.  Neither  of  the  claims  was  sustained  by 
the  auditor,  and  he  accordingly  rejected  the  evidence  offered  in  support 
of  them.     In  both  particulars  we  think  his  ruling  was  correct.* 

It  is  contended  on  behalf  of  the  defendants  that  the  plaintiffs  were 
common  carriers ;  and  that  by  the  principles  of  the  common  law  they 
are  in  that  relation  required  to  carry  merchandise  and  other  goods  or 
chattels  of  the  same  class  at  equal  rates  for  the  public  and  for  each  in- 
dividual on  whose  account  service  in  this  line  of  business  is  performed. 
There  is  no  doubt  they  are  common  carriers.  That  is  fully  established. 
Thomas  v.  Boston  &  Providence  Railroad,  10  Met.  472.  Norway 
Plains  Co.  v.  Boston  &  Maine  Railroad,  1  Gray,  263.  But  by  the  law 
of  this  Commonwealth  every  railroad  corporation  is  authorized  to  estab- 
lish for  their  sole  benefit  a  toll  upon  all  passengers  and  property 
conveyed  or  transported  on  their  railroad,  at  such  rates  as  may  be  de- 
I  The  decision  upon  the  firi<t  grouud  is  omitted.  —  Eu. 


FITCHBURG  RAILROAD   V.   GAGE.  485 

ter mined  by  the  directors.  Rev.  Sts,  c.  39,  §  83.  This  right  however 
is  very  fully,  and  reasonably,  subjected  to  legislative  supervision  and 
control ;  a  provision  which  ma}'  be  believed  to  be  sufficient  to  guard 
this  large  conceded  power  against  all  injustice  or  abuse.  And  in  view 
of  this  large  and  unqualified,  and  therefore  adequate  supervision,  the 
right  of  railroad  corporations  to  exact  compensation  for  services  ren- 
dered maj-  be  considered  as  conforming  substantially  to  the  rule  of  the 
common  law  upon  the  same  subject.  This  rule  is  clearly  stated  h^ 
Lawrence,  J.,  in  the  case  of  Harris  v.  Packwood,  3  Taunt.  272:  "I 
would  not,  however,  have  it  understood  that  carriers  are  at  libert\-  by 
law  to  charge  whatever  they  please  ;  a  carrier  is  liable  bj'  law  to  carry 
everything  which  is  brought  to  him,  for  a  reasonable  sum  to  be  paid  to 
him  for  the  same  carriage  ;  and  not  to  extort  what  he  will."  This  is 
the  doctrine  of  the  common  law.  2  Kent  Com.  (6th  ed.)  599.  Angeli 
on  Carriers,  §  124.  And  it  supplies  substantiallj'  the  same  rule  which 
is  recognized  and  established  in  this  Commonwealth  by  the  provisions  of 
St.  1845,  c.  191.  The  recent  English  cases,  cited  hy  the  counsel  for 
the  defendants,  are  chiefly  commentaries  upon  the  special  legislation  of 
Parliament  regulating  the  transportation  of  freight  on  railroads  con- 
structed under  the  authoritj'  of  the  government  there  ;  and  consequentlj' 
throw  very  little  light  upon  questions  concerning  the  general  rights  and 
duties  of  common  carriers,  and  are  for  that  reason  not  to  be  regarded 
as  authoritative  expositions  of  the  common  law  upon  those  subjects. 
The  principle  derived  from  that  source  is  very  plain  and  simple.  It 
requires  equal  justice  to  all.  But  the  equality  which  is  to  be  observed 
in  relation  to  the  public  and  to  every  individual  consists  in  the  re- 
stricted right  to  charge,  in  each  particular  case  of  service,  a  reasonable 
compensation,  and  no  more.  If  the  carrier  confines  himself  to  this,  no 
wrong  can  be  done,  and  no  cause  afforded  for  complaint.  If,  for  special 
reasons,  in  isolated  cases,  the  carrier  sees  fit  to  stipulate  for  the  car- 
riage of  goods  or  merchandise  of  any  class  for  individuals  for  a  certain 
time  or  in  certain  quantities  for  less  compensation  than  what  is  the 
usual,  necessar}^  and  reasonable  rate,  he  may  undoubtedh'  do  so  with- 
out thereby  entitling  all  other  persons  and  parties  to  the  same  advantage 
and  relief.  It  could  of  course  make  no  difference  whether  such  a  con- 
cession was  in  relation  to  articles  of  the  same  kind  or  belonging  to  the 
same  general  class  as  to  risk  and  cost  of  transportation.  The  defend- 
ants do  not  deny  that  the  charge  made  on  them  for  the  transportation 
of  their  ice  was  according  to  the  rates  established  by  the  directors  of 
the  company,  or  assert  that  the  compensation  claimed  is  in  any  degree 
excessive  or  unreasonable.  Certainl}'  then  the  charges  of  the  plaintiffs 
should  be  considered  legal  as  well  as  just ;  nor  can  the  defendants  have 
any  real  or  equitable  right  to  insist  upon  any  abatement  or  deduction, 
because  for  special  reasons,  which  are  not  known  and  cannot  therefore 
be  appreciated,  allowances  mav  have  been  conceded  in  particular  in- 
stances, or  in  reference  to  a  particular  series  of  services,  to  other 
parties. 


486  MESSENGER   V.   PENNSYLVANIA  RAILROAD   CO. 

There  remains  another  question,  the  determination  of  which  depends 
upon  other  and  different  considerations.  The  auditor,  for  the  purpose 
of  presenting  the  question  to  the  determination  of  the  court,  rejected 
evidence  offered  by  the  defendants  tending  to  prove  that  prior  to  the 
22d  of  Februar}',  1855,  and  down  to  that  time,  the  plaintiffs  had  trans- 
ported for  them  large  quantities  of  ice  from  Groton  at  a  much  less  rate 
of  compensation  than  the  amount  charged  in  their  account  under  date 
of  the  31st  Januarj-  of  that  year,  without  having  given  them  notice,  and 
without  their  knowledge,  of  any  intention  to  increase  the  charge  for 
such  service.  This  evidence  was  rejected,  for  the  reason  that  the  direc- 
tors of  the  plaintiff  corporation  had,  prior  to  the  transportation  of  the 
ice  in  the  last  named  item,  fixed  and  raised  the  rate  of  transportation  of 
ice  on  their  road  from  Groton  to  ninety  cents  per  ton.  This  evidence 
ought  to  have  been  received.  In  the  absence  of  any  special  contract  be- 
tween the  parties,  it  had  a  tendency  to  show  what  was  the  understand- 
ing between  the  parties  on  the  subject,  and  what  the  defendants  had  a 
right  to  consider  would  be  the  price  to  be  charged  to  them  for  services 
performed  in  their  behalf.  If  not  controlled,  it  would  and  ought  to 
have  had  a  material  effect  upon  determining  the  question  concerning 
the  compensation  which  the  plaintiffs  were  entitled  to  recover.  It  might 
have  been  controlled  either  b}'  showing  that  the  defendants  did  in  fact 
have  notice  of  the  new  rate  of  charge  established  by  the  directors  of  the 
company,  or  that  the  notice  was  communicated  generally  to  all  persons, 
in  the  usual  and  ordinary  manner,  and  with  such  degree  of  publicity  that 
all  persons  dealing  with  them  might  fairly  be  presumed  to  have  cog- 
nizance of  the  change. 

In  this  particular  therefore  the  exception  to  the  ruling  of  the  auditor 
must  be  sustained  ;  in  all  others,  the  exceptions  taken  to  his  decisions 
are  overruled. 

The  case  must  therefore  be  recommitted  to  the  auditor  for  the  pur- 
pose of  hearing  the  evidence  rejected,  and  any  other  proofs  which  the 
parties  may  respectivel}'  produce  relative  to  the  items  of  charge  under 
date  of  January  31st,  and  finding  the  amount  which  is  due  for  the  ser- 
vices there  stated  ;  but  for  no  other  purpose  whatever. 

Exceptions  sustained. 


MESSENGER  v.   PENNSYLVANIA  RAILROAD   COMPANY. 

Supreme  Court  of  New  Jersey,  1873. 
Court  of  Errors  and  Appeals  op  New  Jersey,  1874. 

[7  Vroom  (36  N.  J.  L.),  407 ,  8  Vroom  (37  N.  J.  L.),  531  ] 

Beaslet,  C.  J.  The  Pennsylvania  Railroad  Company,  who  are  the 
defendants  in  this  action,  agreed  with  the  plaintiffs  to  carry  certain 
merchandise  for  them,  between  certain  termini,  at  a  fixed  rate  less  than 
they  should  carry  between  the  same  points  for  any  other  person.  Tiie 
allegation  is,  that  goods  have  been  carried  for  other  parties  at  a  certain 


MESSENGER   V.    PENNSYLVANIA   RAILROAD   CO.  487 

rate  below  what  the  goods  of  the  plaintiffs  have  been  carried,  and  this 
suit  is  to  enforce  the  foregoing  stipulation.  The  question  is,  whether 
the  agreement  thus  forming  the  foundation  of  the  suit  is  legal. 

There  can  be  no  doubt  that  an  agreement  of  this  kind  is  calculated  to 
give  an  important  advantage  to  one  dealer  over  other  dealers,  and  it  is 
equally  clear  that,  if  the  power  to  make  the  present  engagement  exists, 
man}'  branches  of  business  are  at  the  mercy  of  these  companies.  A 
merchant  who  can  transport  his  wares  to  market  at  a  less  cost  than  his 
rivals,  will  soon  acquire,  by  underselling  them,  a  practical  monopol}'  of 
the  business ;  and  it  is  obvious,  that  tiiis  result  can  often  be  brought 
about  if  the  rule  is,  as  the  plaintiffs  contend  that  it  is,  that  these 
bargains  giving  preferences  can  be  made.  A  railroad  is  not,  in 
general,  subject  to  much  competition  in  the  business  between  its 
termini ;  the  difficulty  in  getting  a  charter,  and  the  immense  ex- 
pense in  building  and  equipping  a  road,  leaves  it,  in  the  main, 
without  a  rival  in  the  field  of  its  operation ;  and  the  consequence 
is,  the  trader  who  can  transmit  his  merchandise  over  it  on  terms  more 
favorable  than  others  can  obtain  is  in  a  fair  way  of  ruling  the  market. 
The  tendency  of  such  compacts  is  adverse  to  the  public  welfare,  which 
is  materially  dependent  on  commercial  competition  and  the  absence  of 
monopolies.  Consequently,  the  inquiry  is  of  moment,  whether  such 
compacts  may  be  made.  I  have  examined  the  cases,  and  none  that  I 
have  seen  is,  in  all  respects,  in  point,  so  that  the  problem  is  to  be  solved 
by  a  recurrence  to  the  general  principles  of  the  law. 

The  defendants  are  common  carriers,  and  it  is  contended  that  bailees 
of  that  character  cannot  give  a  preference  in  the  exercise  of  their  call- 
ing to  one  dealer  over  another.  It  cannot  be  denied,  that  at  the  com- 
mon law,  ever}'  person,  under  identical  conditions,  had  an  equal  right  to 
the  services  of  their  commercial  agents.  It  was  one  of  the  primary 
obligations  of  the  common  carrier  to  receive  and  carry  all  goods  offered 
for  transportation,  upon  receiving  a  reasonable  hire.  If  he  refused  the 
offer  of  such  goods,  he  was  liable  to  an  action,  unless  he  could  show  a 
reasonable  ground  for  his  refusal.  Thus,  in  the  very  foundation  and 
substance  of  the  business,  there  was  inherent  a  rule  which  excluded  a 
preference  of  one  consignor  of  goods  over  another.  The  duty  to  receive 
and  carry  was  due  to  every  member  of  the  community,  and  in  an  equal 
measure  to  each.  Nothing  can  be  clearer  than  that,  under  the  preva- 
lence of  this  principle,  a  common  carrier  could  not  agree  to  carry  one 
man's  goods  in  preference  to  those  of  another. 

It  is  important  to  remark,  that  this  obligation  of  this  class  of  bailees 
is  alwaj's  said  to  arise  out  of  the  character  of  the  business.  Sir  Wilham 
Jones,  importing  the  expression  from  the  older  reports,  declares  that 
this,  as  well  as  the  other  peculiar  responsibilities  of  the  common  carrier, 
is  founded  in  the  consideration  that  the  calling  is  a  public  emplo3'ment. 
Indeed,  the  compulsion  to  serve  all  that  apply  could  be  justified  in  no 
other  wa}',  as  the  right  to  accept  or  reject  an  offer  of  business  is  neces- 
sarily incident  to  all  private  traffic. 


488  MESSENGER  V.   PENNSYLVANIA   RAILROAD   CO. 

Recognizing  this  as  the  settled  doctrine,  I  am  not  able  to  see  how  it 
can  be  admissible  for  a  common  carrier  to  demand  a  different  hire  from 
various  persons  for  an  identical  kind  of  service,  under  identical  condi- 
tions. Such  partiality  is  legitimate  in  private  business,  but  how  can  it 
square  with  the  obligations  of  a  public  employment?  A  person  having 
a  public  duty  to  discharge,  is  undoubtedly  bound  to  exercise  such  office 
for  the  equal  benefit  of  all,  and  therefore  to  permit  the  common  carrier 
to  charge  various  prices,  according  to  the  person  with  whom  he  deals, 
for  the  same  services,  is  to  forget  that  he  owes  a  duty  to  the  community*. 
If  he  exacts  different  rates  for  the  carriage  of  goods  of  the  same  kind, 
between  the  same  points,  he  violates,  as  plainly,  though  it  may  be  not 
in  the  same  degree,  the  principle  of  public  policy  which,  in  his  own  de- 
spite, converts  his  business  into  a  public  employment.  The  law  that 
forbids  him  to  make  an}'  discrimination  in  favor  of  the  goods  of  A  over 
the  goods  of  B,  when  the  goods  of  both  are  tendered  for  carriage,  must, 
it  seems  to  me,  necessarily  forbid  any  discrimination  with  respect  to  the 
rate  of  pay  for  the  carriage.  I  can  see  no  reason  wh}',  under  legal 
rules,  perfect  equality  to  all  persons  should  be  exacted  in  the  dealings 
of  the  common  carrier,  except  with  regard  to  the  amount  of  compensa- 
tion for  his  services.  The  rules  that  the  carrier  shall  receive  all  the 
goods  tendered  loses  half  its  value,  as  a  politic  regulation,  if  the  cost 
of  transportation  can  be  graduated  by  special  agreement  so  as  to  favor 
one  party  at  the  expense  of  others.  Nor  would  this  defect  in  the  law, 
if  it  existed,  be  remedied  by  the  principle  which  compels  the  carrier  to 
take  a  reasonable  hire  for  his  labor,  because,  if  the  rate  charged  b}'  him 
to  one  person  might  be  deemed  reasonable,  by  charging  a  lesser  price 
to  another  for  similar  services,  he  disturbs  that  equality  of  rights  among 
his  employers  which  it  is  the  endeavor  of  the  law  to  effect.  Indeed, 
when  a  charge  is  made  to  one  person,  and  a  lesser  charge,  for  precisely 
the  same  offices,  to  another,  I  think  it  should  be  held  that  the  higher 
charge  is  not  reasonable ;  a  presumption  which  would  cut  up  by  the 
roots  the  present  agreement,  as,  by  the  operation  of  this  rule,  it  would 
be  a  promise  founded  on  the  supposition  that  some  other  person  is  to 
be  charged  more  than  the  law  warrants. 

From  these  considerations,  it  seems  to  me,  that  testing  the  duties  of 
this  class  of  bailees  by  the  standard  of  the  ancient  principles  of  the  law, 
the  agreement  now  under  examination  cannot  be  sanctioned.  This  is 
the  sense  in  which  Mr.  Smith  understands  the  common  law  rule.  In 
his  Leading  Cases,  p.  174,  speaking  of  the  liabilities  of  carriers,  he  says  : 
"  The  hire  charged  must  be  no  more  than  a  reasonable  remuneration 
to  the  carrier,  and,  consequently,  not  more  to  one  (though  a  rival  car- 
rier) than  to  another,  for  the  same  service."  I  am  aware,  that  in  the 
case  of  Baxendale  v.  The  Eastern  Counties  Railway,  4  C.  B.  (N.  S.) 
81,  this  definition  of  the  common  law  rule  was  criticised  by  one  of  the 
Judges,  but  the  subject  was  not  important  in  that  case,  and  was  not 
discussed,  and  the  expression  of  opinion  with  respect  to  it  was  entirely 
cursory.     Indeed,  the  whole  question  has  become  of  no  moment  in  the 


MESSENGER   V.   PENNSYLVANIA   RAILROAD   CO.  489 

English  law,  as  the  subject  is  specifically  regulated  by  the  statute  17 
and  18  Vict.,  ch.  31,  which  prohibits  the  giving  "  of  any  undue  or  un- 
reasonable preference  or  advantage  to  or  in  favor  of  an}-  particular  per- 
son or  company,  or  any  particular  description  of  traffic,  in  any  respect 
whatsoever."  The  date  of  this  act  is  1854,  and  since  that  time  the 
decisions  of  the  courts  of  Westminster  have,  when  discussing  this  class 
of  the  responsibilities  of  common  carriers,  been  devoted  to  its  exposi- 
tion. But  the  courts  of  Pennsylvania  have  repeatedly  declared  that 
this  act  was  but  declaratory  of  the  doctrine  of  the  common  law.  This 
was  so  held  in  the  case  of  Sandford  v.  The  Catawissa,  WiUiamsport,  & 
Erie  Railroad  Co.,  24  Penn.  378,  in  which  an  agreement  by  a  railway 
company  to  give  an  express  company  the  exclusive  right  to  carry  goods 
in  certain  trains  was  pronounced  to  be  illegal.  In  a  more  recent  de- 
cision, Mr.  Justice  Strong  refers  to  this  case  with  approval,  and  says 
that  the  special  provisions  which  are  sometimes  inserted  in  railroad 
charters,  in  restraint  of  undue  preferences,  are  "but  declaratory  of 
what  the  common  law  now  is."  This  is  the  view  which,  for  the  reasons 
already  given,  I  deem  correct. 

But  even  if  this  result  could  not  be  reached  by  fair  induction  from  the 
ancient  principles  which  regulate  the  relationship  between  this  class  of 
bailees  and  their  employers,  I  should  still  be  of  opinion  that  we  would 
be  necessarily  led  to  it  by  another  consideration. 

I  have  insisted  that  a  common  carrier  was  to  be  regarded ^  to  some 
extent  at  least,  as  clothed  with  a  public  capacity,  and  1  now  maintain, 
that  even  if  this  theory  should  be  rejected,  and  thrown  out  of  the  argu- 
ment, still  the  defendants  must  be  considered  as  invested  with  that  at- 
tribute. In  my  opinion,  a  railroad  company,  constituted  under  statutory 
authority,  is  not  onl}',  bj'  force  of  its  inherent  nature,  a  common  carrier, 
as  was  held  in  the  case  of  Palmer  v.  Grand  Junction  Railway,  4  M.  & 
"W.  749,  but  it  becomes  an  agent  of  the  public  in  consequence  of  the 
powers  conferred  upon  it.  A  company  of  this  kind  is  invested  with 
important  prerogative  franchises,  among  which  are  the  rights  to  build 
and  use  a  railwa}',  and  to  charge  and  take  tolls  and  fares.  These  pre- 
rogatives are  grants  from  the  government,  and  public  utility  is  the  con- 
sideration for  them.  Although  in  the  hands  of  a  private  corporation, 
they  are  still  sovereign  frnnchises,  and  must  be  used  and  treated  as 
such ;  they  must  be  held  in  trust  for  the  general  good.  If  they  had 
remained  under  the  control  of  the  state,  it  could  not  be  pretended,  that 
in  the  exercise  of  them  it  would  have  been  legitimate  to  favor  one  citi- 
zen at  the  expense  of  another.  If  a  state  should  build  and  operate  a 
railroad,  the  exclusion  of  everything  like  favoritism  with  respect  to  its  use 
would  seem  to  be  an  obligation  that  could  not  be  disregarded  without 
violating  natural  equity  and  fundamental  principles.  And  it  seems  to 
me  impossible  to  concede,  that  when  such  rights  as  these  are  handed 
over,  on  public  considerations,  to  a  company  of  individuals,  such  rights 
lose  their  essential  characteristics.  I  think  they  are,  unalterabl}-,  parts 
of  the  supreme  authority,  and  in  whatsoever  hands  they  may  be  found, 


490  MESSENGEK  V.   PENNSYLVANIA   RAILROAD   CO. 

they  must  be  considered  as  such.  In  the  use  of  such  franchises,  all  citi- 
zens have  an  equal  interest  and  equal  rights,  and  all  must,  under  the  same 
circumstances,  be  treated  alike.  It  cannot  be  supposed  that  it  was  the 
legislative  intention,  when  such  privileges  were  given,  that  they  were  to 
be  used  as  private  propert}',  at  the  discretion  of  the  recipient,  but,  to 
the  contrary  of  this,  I  think  an  implied  condition  attaches  to  such 
grants,  that  they  are  to  be  held  as  a  qtiasi  public  trust  for  the  benefit, 
at  least  to  a  considerable  degree,  of  the  entire  community.  In  their 
very  nature  and  constitution,  as  I  view  this  question,  these  companies 
become,  in  certain  aspects,  public  agents,  and  the  consequence  is,  they 
must,  in  the  exercise  of  their  calling,  observe  to  all  men  a  perfect  im- 
partiality. On  these  grounds,  the  contract  now  in  suit  must  be  deemed 
illegal  in  the  very  particular  on  which  a  recovery  is  sought. 
The  result  is,  the  defendants  must  have  judgment  on  the  demurrer. 

In  the  Court  of  Errors  and  Appeals,  on  error  to  the  Supreme  Court, 
the  opinion  of  the  Court  was  delivered  by 

Bedle,  J.^  The  business  of  the  common  carrier  is  for  the  public,  and 
it  is  his  duty  to  serve  the  public  indifferently.  He  is  entitled  to  a  rea- 
sonable compensation,  but  on  payment  of  that  he  is  bound  to  carry  for 
whoever  will  employ  him,  to  the  extent  of  his  ability.  A  private  carrier 
can  make  what  contract  he  pleases.  The  public  have  no  interest  in 
that,  but  a  service  for  the  public  necessarily  implies  equal  treatment  in 
its  performance,  when  the  right  to  the  service  is  common.  Because 
the  institution,  so  to  speak,  is  public,  ever}'  member  of  the  community 
stands  on  an  equality  as  to  the  right  to  its  benefit,  and,  therefore,  the 
carrier  cannot  discriminate  between  individuals  for  whom  he  will  render 
the  service.  In  the  verj-  nature,  then,  of  his  dut}'  and  of  the  public 
right,  his  conduct  should  be  equal  and  just  to  all.  So,  also,  there  is 
involved  in  the  reasonableness  of  his  compensation  the  same  principle. 
A  want  of  uniformity  in  price  for  the  same  kind  of  service  under  like 
circumstances  is  most  unreasonable  and  unjust,  when  the  right  to  demand 
it  is  common.  It  would  be  strange  if,  when  the  object  of  the  employ- 
ment is  the  public  benefit,  and  the  law  allows  no  discrimination  as  to 
individual  customers,  but  requires  all  to  be  accommodated  alike  as  indi- 
viduals, and  for  a  reasonable  rate,  that  by  the  indirect  means  of  unequal 
prices  some  could  lawfully  get  the  advantage  of  the  accommodation  and 
others  not  A  direct  refusal  to  carry  for  a  reasonable  rate  would  in- 
volve the  carrier  in  damages,  and  a  refusal,  in  effect,  could  be  accom- 
plished by  unfair  and  unequal  charges,  or  if  not  to  that  extent,  the 
public  right  to  the  convenience  and  usefulness  of  the  means  of  carriage 
could  be  greatly  impaired.  Besides,  the  injur}'  is  not  only  to  the  indi- 
vidual affected,  but  it  reaches  out,  disturbing  trade  most  seriously. 
Competition  in  trade  is  encouraged  by  the  law,  and  to  allow  an}'  one  to 
use  means  established  and  intended  for  the  public  good,  to  promote  ud« 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


MESSENGER   V.   PENNSYLVANIA   RAILROAD   CO.  491 

fair  advantages  amongst  the  people  and  foster  monopolies,  is  against 
public  policy,  and  should  not  be  permitted.  .  .  . 

It  must  not  be  inferred  that  a  common  carrier,  in  adjusting  his  price, 
cannot  regard  the  peculiar  circumstances  of  the  particular  transporta- 
tion. Many  considerations  may  properly  enter  into  the  agreement  for 
carriage  or  the  establishment  of  rates,  such  as  the  quantity'  carried,  its 
nature,  risks,  the  expense  of  carriage  at  different  periods  of  time,  and 
the  like  ;  but  he  has  no  right  to  give  an  exclusive  advantage  or  prefer- 
ence, in  that  respect,  to  some  over  others,  for  carriage,  in  the  course  of 
his  business.  For  a  like  service,  the  public  are  entitled  to  a  like  price. 
There  may  be  isolated  exceptions  to  this  rule,  where  the  interest  of  the 
immediate  parties  is  alone  involved,  and  not  the  rest  of  the  public,  but 
the  rule  must  be  applied  whenever  the  service  of  the  carrier  is  sought 
or  agreed  for  in  the  range  of  business  or  trade.  This  contract  being 
clearly  within  it,  and  odious  to  the  law  in  the  respect  on  which  a  recovery 
is  sought,  cannot  be  sustained.  But  there  is  an  additional  ground  upon 
which  it  is  also  objectionable.  I  entirel}'  agree  with  the  Chief  Justice, 
that,  in  the  grant  of  a  franchise  of  building  and  using  a  public  railway, 
that  there  is  an  implied  condition  that  it  is  held  as  a  quasi  public  trust, 
for  the  benefit  of  all  the  public,  and  that  the  company  possessed  of  the 
grant  must  exercise  a  perfect  impartiality  to  all  who  seek  the  benefit  of 
the  trust.  It  is  true  that  these  railroad  corporations  are  private,  and, 
in  the  nature  of  their  business,  are  subject  to  and  bound  b}'  the  doc- 
trine of  common  carriers,  yet,  beyond  that,  and  in  a  peculiar  sense,  they 
are  intrusted  with  certain  functions  of  the  government,  in  order  to 
afford  the  public  necessary  means  of  transportation.  The  bestowment 
of  these  franchises  is  justified  onlj^  on  the  ground  of  the  public  good, 
and  they  must  be  held  and  enjoyed  for  that  end.  This  public  good  is 
common,  and  unequal  and  unjust  favors  are  entirelj^  inconsistent  with 
the  common  right.  So  far  as  their  dutj-  to  serve  the  public  is  concerned, 
they  are  not  onl}*  common  carriers,  but  public  agents,  and  in  their  very 
constitution  and  relation  to  the  public,  there  is  necessarilj-  implied  a 
duty  on  their  part,  and  a  right  in  the  public,  to  have  fair  treatment  and 
immunity  from  unjust  discrimination.  The  right  of  the  public  is  equal 
in  every  citizen,  and  the  trust  must  be  performed  so  as  to  secure  and 
protect  it. 

Every  trust  should  be  administered  so  as  to  afford  to  the  cestui  que 
trust  the  enjoyment  of  the  use  intended,  and  these  railroad  trustees 
must  be  held,  in  their  relation  to  the  public,  to  such  a  course  of  dealing 
as  will  insure  to  ever}^  member  of  the  communit}'  the  equal  enjoyment 
of  the  means  of  transportation  provided,  subject,  of  course,  to  their 
reasonable  ability  to  perform  the  trust.  In  no  other  wa}'  can  trade  and 
commercial  interchange  be  left  free  from  unjust  interference.  On  this 
latter  ground,  that  part  of  the  contract  in  question  is  illegal. 

The  judgment  of  the  Supreme  Court  must  be  affirmed. 


492  SILKMAN   V,   WATER  COMMISSIONERS. 

SILKMAN  V.   WATER   COMMISSIONERS. 

CoDBT  OF  Appeals,  New  York,  1897. 

[152  N.  Y.  327.1] 

Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  second  judicial  department,  entered  August  3,  1893,  which 
affirmed  a  judgment  in  favor  of  defendant  entered  upon  a  decision  of 
the  court  dismissing  the  complaint  upon  the  merits  on  trial  at  Special 
Term. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are  stated 
in  the  opinion. 

Martin,  J.  .  .  .  The  claim  of  the  plaintiff,  that  the  rents  established 
b}'  the  defendant  were  not  authorized  by  the  act  incorporating  it,  can- 
not be  sustained.  In  broad  terms,  the  act  conferred  upon  the  defend- 
ant the  power  to  establish  a  scale  of  rents  to  be  charged  and  paid  for 
the  use  and  supply  of  water,  having  reference  to  matters  referred  to  in 
the  statute,  among  which  was  the  consumption  of  water.  The  objec- 
tion made  here  is  that  the  persons  who  consumed  large  quantities  of 
water  were  not  charged  as  much  per  hundred  cubic  feet  as  those  who 
consumed  a  less  amount.  Under  this  statute  the  question  of  consump- 
tion was  one  of  the  elements  to  be  considered  in  determining  the  rates. 
Sure]}',  it  cannot  be  said  to  be  unreasonable  to  provide  less  rates  where 
a  large  amount  of  water  is  used  than  where  a  small  quantitj'  is  con- 
sumed. That  principle  is  usually  present  in  all  contracts  or  established 
rents  of  that  character.  It  will  be  found  in  contracts  and  charges  re- 
lating to  electric  lights,  gas,  private  water  companies,  and  the  like,  and 
is  a  business  principle  of  general  application.  We  find  in  the  rates  as 
they  were  established  nothing  unreasonable,  or  that  would  in  anj'  way 
justify  a  court  interfering  with  them. 

It  follows  that  the  decisions  of  the  courts  below  were  correct,  and 
should  be  affirmed. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur.  Judgment  affirmed, 

^  Thii  case  is  abridged.  — £d. 


WESTERN  UNION   TELEGRAPH   CO.   V.  CALL   PUBLISHING  CO.     493 

WESTERN   UNION  TELEGRAPH   COMPANY  v.  CALL 
PUBLISHING  COMPANY. 

Supreme  Court  of  the  United  States,  1901. 

[181  17.  S.  92.1] 

This  was  an  action  commenced  on  April  29,  1891,  in  the  district 
court  of  Lancaster  Count}',  Nebraska,  by  the  Call  Publishing  Company 
to  recover  sums  alleged  to  have  been  wrongfully  charged  and  collected 
from  it  by  the  defendant,  now  plaintiff  in  error,  for  telegraphic  services 
rendered.  According  to  the  petition  the  plaintiff  had  been  engaged 
in  publishing  a  daily  newspaper  in  Lincoln,  Nebraska,  called  The  Lin- 
coln Daily  Call.  The  Nebraska  State  Journal  was  another  newspaper 
published  at  the  same  time  in  the  same  city,  by  the  State  Journal  Com- 
pany'. Each  of  these  papers  received  Associated  Press  dispatches  over 
the  lines  of  defendant.  The  petition  alleged :  ' '  4th.  That  during  all 
of  said  period  the  defendant  wrongfully  and  unjustly  discriminated  in 
favor  of  the  said  State  Journal  Company  and  against  this  plaintiff,  and 
gave  to  the  State  Journal  Company  an  undue  advantage,  in  this  :  that 
while  the  defendant  demanded,  charged  and  collected  of  and  from  the 
plaintiff  for  the  services  aforesaid  seventj-^-five  dollars  per  month  for 
such  dispatches  amounting  to  1500  words  or  less  daily,  or  at  the  rate 
of  not  less  than  five  dollars  per  100  words  daily  per  month  it  charged 
and  collected  from  the  said  State  Journal  Company  for  the  same,  like 
and  contemporaneous  services  only  the  sum  of  $1.50  per  100  words 
daily  per  month. 

Mr.  Justice  Brewer.  The  case,  therefore,  was  not  submitted  to 
the  jury  upon  the  alleged  efficacy  of  the  Nebraska  statute  in  respect 
to  discriminations,  but  upon  the  propositions  distinctly  stated,  that 
where  there  is  dissimilarity  in  the  services  rendered  a  difference  in 
charges  is  proper,  and  that  no  recovery  can  be  had  unless  it  is  shown, 
not  merely  that  there  is  a  difference  in  the  charges,  but  that  that  dif- 
ference is  so  great  as,  under  dissimilar  conditions  of  service,  to  show 
an  unjust  discrimination,  and  that  the  recovery  must  be  limited  to  the 
amount  of  the  unreasonable  discrimination. 

No  one  can  doubt  the  inherent  justice  of  the  rules  thus  laid  down. 
Common  carriers,  whether  engaged  in  interstate  commerce  or  in  that 
wholly  within  the  State,  are  performing  a  public  service.  They  are 
endowed  by  the  State  with  some  of  its  sovereign  powers,  such  as  the 
right  of  eminent  domain,  and  so  endowed  by  reason  of  the  public  ser- 
vice they  render.  As  a  consequence  of  this,  all  individuals  have  equal 
rights  both  in  respect  to  service  and  charges.  Of  course,  such  equality 
of  right  does  not  prevent  differences  in  the  modes  and  kinds  of  service 
and  different  charges  based  thereon.  Tiiere  is  no  cast  iron  line  of  uni- 
formity which  prevents  a  charge  from  being  above  or  below  a  particular 
sum,  or  requires  that  the  service  shall  be  exactly  along  the  same  lines. 
1  Only  an  extract  is  printed.  —  Ed. 


494  GOODRIDGE   V.  UNION   PACIFIC  RAILWAY  COMPANY. 

But  that  principle  of  equality  does  forbid  any  difference  in  charge  which 
is  not  based  upon  difference  in  service,  and  even  when  based  upon  dif- 
ference of  service,  must  have  some  reasonable  relation  to  the  amount 
of  difference,  and  cannot  be  so  great  as  to  produce  an  unjust  discrim- 
ination.^ 


GOODRIDGE  v.  UNION  PACIFIC  RAILWAY  COMPANY. 
CiBCUiT  Court  of  the  United  States,   1889. 

[37  Fed.  182.2] 

At  law,  on  demurrer  to  answer. 

Hallett,  J.  From  all  this  it  is  apparent  that  the  answer  sets  up 
certain  considerations  received  by  the  defendant  from  the  Marshall 
Company,  upon  which  less  rates  are  given  to  the  latter  than  to  other 
shippers.  And  these  considerations  are  not  in  the  way  of  a  charge  for 
carrying  coal  upon  which  any  estimate  can  be  made  to  ascertain  the 
amount  of  such  charge.  Whether  we  refer  to  the  claim  for  damages 
against  the  Denver  &  Western  Compan}',  or  to  the  matter  of  furnishing 
coal  for  defendant's  use,  or  to  any  other  consideration  for  the  contract, 
it  is  plain  that  there  is  no  basis  of  calculation  other  than  the  rate  fixed 
in  the  contract  itself.  It  is  not  possible  to  sa}'  how  much,  if  anything, 
should  be  added  to  the  contract  price  of  carrj'ing  coal  on  account  of  the 
claim  for  damages  against  the  Denver  &  Western  Companj-,  or  on  ac- 
count of  canceling  the  contract  with  the  Union  Coal  Company,  or  on 
account  of  furnishing  coal  at  cost  for  defendant's  use,  or  on  account  of 
furnishing  coal  for  sale,  at  a  reduced  price,  or  on  account  of  an}-  other 
matter  mentioned  in  the  answer.  The  whole  answer  amounts  onl}-  to 
this :  that  the  Marshall  Company  is  allowed  less  rates  than  other  ship- 
pers are  required  to  pay  upon  considerations  which  are  satisfactor}'  to 
defendant.  And  it  is  obvious  that  this  is  no  answer  to  a  complaint  of 
unlawful  discrimination. 

1  Compare:  Schofield  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  43  Oh.  St.  571,  accord.;  and 
Concord  &  P.  R.  R.  Co.  v.  Forsaith,  59  N.  H.  122,  contra. 
*  Only  an  extract  is  printed.  —  £d. 


Si8t  TONS   OF  COilL.  495 


318^  TONS  OF  COAL. 

District  Court  op  the  United  States  (Conn.),  1877. 
Circuit  Court  of  the  United  States,  1878. 

[14  Blatch.  453.] 

Libel  in  rem  for  freight  and  demurrage. 

The  libellants  carried  a  cargo  of  coal  to  New  Haven,  to  be  delivered 
to  the  Glasgow  Co.  at  the  Canal  Railroad  Dock.  The  consignee  was 
located  near  the  line  of  the  railroad  in  Massachusetts.  It  was  the 
custom  of  the  port  for  coal,  thus  consigned  to  a  railroad  wharf,  to  be 
shovelled  from  the  hold  of  the  vessel  into  large  buckets,  let  down  and 
hauled  up  by  a  steam  derrick,  which  discharged  them  into  the  cars  of 
the  railroad.  Prior  to  1871,  the  shovellers  who  filled  the  buckets  had 
been  hired  and  paid  by  the  master  of  the  vessel.  In  that  3'ear  the  Canal 
Railroad  Co.  made  a  rule  that  it  would  thereafter  supply  all  coal  vessels 
with  shovellers,  at  ten  cents  a  ton,  and  that  no  vessel  could  discharge 
except  b}-  using  shovellers  thus  supplied.  Ten  cents  a  ton  was  then 
the  ordinary  rate  of  wages  for  such  services,  but  in  1876  charges  of 
shovellers  fell,  and  they  could  be  hired  for  eight  cents.  The  libellants 
thereupon  hired  shovellers  at  eight  cents,  and  refused  to  receive  those 
furnished  by  the  compan}',  unless  they  would  work  at  the  same  rate. 
The  company  for  this  cause  refused  to  allow  the  cargo  to  be  unloaded, 
and  it  was  discharged  at  a  neighboring  wharf,  after  some  delay,  and 
there  libelled. 

Shipman,  J.  If  the  rule  is  valid  and  reasonable,  there  was  no  de- 
livery of  the  coal.  If  the  rule  is  invalid  or  unreasonable,  there  was  a 
deliver}',  or  its  equivalent,  an  offer  and  tender  of  delivery  to  the  person 
entitled  to  receive  the  coal,  at  the  usual  and  reasonable  time  and  place, 
and  in  the  reasonable  manner  of  deliver}-,  and  a  refusal  to  accept  on 
the  part  of  the  railroad  company.  In  the  latter  event,  the  contract  of 
affreightment  was  complied  with  b}'  the  libellants,  and  freight  was 
earned.  No  question  was  made  as  to  the  liability  of  the  defendants 
under  the  bill  of  lading,  for  freight,' in  case  the  railroad  company  im- 
properly refused  to  receive  the  coal.  The  bill  of  lading  required  de- 
livery to  the  defendants  at  the  Canal  Dock.  It  is  admitted  that  the 
com|T ny,  upon  notification  that  the  coal  was  ready  to  be  discharged, 


496  8181  TONS   OF  COAL. 

replied  that  said  cargo  might  be  forth wita  discharged,  and  would  be 
received  by  it  for  the  defendants. 

The  railroad  company  is  not  merely  an  owner  of  a  private  wharf, 
having  restricted  duties  to  perform  towards  the  public.  Such  a  wharf 
owner  may  properly  construct  his  wharf  for  particular  kinds  of  business, 
and  may  make  rules  to  limit  and  to  restrict  the  mannef  in  which  his 
property  shall  be  used ;  (Croucher  v.  Wilder,  98  Mass.  322 ;)  but  the 
railroad  company  is  a  common  carrier,  and  its  wharf,  occupied  by  rail- 
road tracks,  is  the  place  provided  b}-  itself  for  the  reception  of  goods 
which  must  be  received  and  transported,  in  order  to  comply*  with  its 
public  obligations.  The  coal  was  to  be  received  from  the  vessel  by  the 
railroad  company,  as  the  carrier  next  in  line,  and  thence  carried  to  its 
place  of  destination.  The  question  which  is  at  issue  between  the  par- 
ties depends  upon  the  power  of  a  common  carrier  to  establish  rules 
which  shall  prescribe  by  what  particular  persons  goods  shall  be  deliv- 
ered to  him  for  transportation.  "Common  carriers  undertake  generall}-, 
and  not  as  a  casual  occupation,  and  for  all  people  indifferently,  to  con- 
vey goods  and  deliver  them  at  a  place  appointed,  for  hire,  as  a  business, 
and  with  or  without  a  special  agreement  as  to  price,  ...  As  they  hold 
themselves  to  the  world  as  common  carriers  for  a  reasonable  compen- 
sation, they  assume  to  do,  and  are  bound  to  do,  what  is  required  of 
them  in  the  course  of  their  emploj'ment,  if  they  have  the  requisite  con- 
venience to  carr}',  and  are  offered  a  reasonable  or  customarj*  price  ,• 
and,  if  they  refuse,  without  some  just  ground,  the}'  are  liable  to  an 
action."  (2  Kent's  Comm.  599.)  A  common  carrier  is  under  an  obli- 
gation to  accept,  within  reasonable  limits,  ordinary  goods  which  may 
be  tendered  to  him  for  carnage  at  reasonable  times,  for  which  he  has 
accommodation.  (Crouch  v.  L.  &  N.  W.  Railwa}-  Co.,  14  C.  B.  255.) 
The  carrier  cannot  generally  discriminate  between  persons  who  tender 
freight,  and  exclude  a  particular  class  of  customers.  The  railroad 
company  could  not  establish  the  rule  that  it  would  receive  coal  only 
from  certain  barge  owners,  or  from  a  particular  class  of  barge  captains. 
It  carries  "for  all  people  indifferently."  But,  while  admitting  this 
dut}',  the  compan}'  has  declared  that,  for  the  convenience  of  the  public, 
and  in  order  to  transport  coal  more  expeditiously,  and  to  avoid  delays, 
it  will  receive  such  coal  only,  from  barges  at  its  wharf,  as  shall  be  de- 
livered through  the  agenc}'  of  laborers  selected  by  the  company-.  This 
rule  is  a  restriction  upon  its  common  law  obligation.  The  carrier,  on 
its  part,  is  bound  to  receive  goods  from  all  persons  alike.  The  duty 
and  the  labor  of  delivery  to  the  carrier  is  imposed  upon  the  barge 
owner,  who  pays  for  the  necessary  labor.  The  service,  so  far  as  the 
shovelling  is  concerned,  is  performed,  not  upon  the  property  of  the 
railroad  company,  but  upon  the  deck  of  the  vessel.  The  company  is 
virtually  saying  to  the  barge  owner,  You  shall  employ  upon  your  own 
property,  in  the  service  which  you  are  bound  to  render,  and  for  which 
you  must  pay,  only  the  laborers  whom  we  designate,  and,  though  our 
general  duty  is  to  receive  all  ordinary  goods  delivered  at  reasonable 


318i  TONS   OF  COAL.  497 

times,  we  will  receive  onlj'  those  goods  which  may  be  handled  by  per- 
sons of  our  selection.  The  law  relating  to  carriers  has  not  yet  permitted 
them  to  impose  such  limitations  upon  the  reception  or  acceptance  of 
goods.  The  carrier  may  properly  impose  reasonable  restrictions  in  re- 
gard to  the  persons  by  whom  he  shall  deliver  goods  to  the  consignee 
or  the  carrier  next  in  line.  The  delivery  of  goods  is  the  duty  of  the 
carrier,  for  which  he  is  responsible,  and  should  be  in  liis  own  control. 
(Beadell  v.  Eastern  Counties  R.  Co.,  2  C.  B.  N.  S.  509.)  It  would  not 
be  contended  that  the  railroad  company-  could  designate  the  ci'ew  upon 
the  barge,  or  could  select  the' barge  captains,  and  I  am  of  opinion  that 
it  has  no  more  authority  over  the  selection  of  the  other  employees  of 
the  barge  owners.  The  fact  that  the  barge  owners  are  using,  for  a 
compensation,  the  derricks  and  tubs  of  the  railroad  company-,  is  not 
material.  The  berths  under  the  derricks  have  been  designated  by  the 
company,  as  proper  places  where  coal  is  to  be  received,  and,  under 
reasonable  circumstances  as  to  time,  and  freedom  from  interference 
with  prior  occupants,  the  incoming  barges  properly  occup}-  such  posi- 
tions. Delivery  is  impracticable  at  the  places  designated  by  the 
company  for  deliver^',  without  the  use  of  the  railroad  company's 
machinery. 

It  is  true,  that,  under  this  rule,  the  delivery  of  coal  into  the  cars  of 
the  railroad  company  has  been  more  expeditiously  performed,  and  has 
been  attended  with  fewer  delaj's  than  formerly,  and  that  the  rule  has 
been  a  convenience  to  the  consignees,  but  the  convenience  of  the  prac- 
tice is  not,  of  itself,  an  adequate  reason  for  compelling  its  enforcement, 
if  it  interferes  with  the  legal  rights  of  others.  I  am  not  prepared  to 
say,  that,  for  the  orderly  management  of  an  extensive  through  freight- 
ing business  by  means  of  connecting  lines,  and  for  the  systematic  and 
efficient  transportation  of  immense  quantities  of  goods,  it  may  not 
hereafter  be  found  a  necessity  that  one  or  the  other  of  the  connecting 
lines  shall  be  furnished  with  the  power  which  is  now  sought  by  the  rail- 
road company ;  but,  in  the  present  condition  of  the  coal  traffic  at  the 
port  of  New  Haven,  this  necessity  does  not  exist.  The  power  is  a 
convenience  to  the  railroad  company.  It  is  not  a  necessity  for  the 
transaction  of  business.  # 

It  is  not  necessary  to  consider  the  inconveniences  which  may  flow 
from  the  rule,  but  the  case  discloses  one  practical  inconvenience  which 
may  arise.  The  rule  presupposes  that  the  same  price  is  to  be  charged 
by  the  employees  furnished  by  the  railroad  company,  which  is  gener- 
ally paid  by  others  for  the  same  service.  When  prices  are  unvarying, 
no  serious  trouble  results.  There  is  no  alternative,  however,  for  the 
barge  owners,  but  to  pay  the  price  which  the  railroad  company  declares 
to  be  the  general  price,  or  else  submit  to  a  refusal  on  the  part  of  the 
railroaid  company  to  accept  the  coal.  The  barge  captain  may  be  able 
to  obtain  the  service  at  a  reduced  rate,  as  he  could  have  done  in  this 
case,  but  he  must  pay  his  own  employees  the  regular  tariff  which  the 
company  has  established,  and  then  have  the  question  of  rates  deter- 

32  ' 


498  S18J  TONS   OF   COAL. 

mined  by  litigation.  The  result  would  be,  that  annoying  litigation  or 
vexatious  altercations  would  ensue.  If  the  barge  owners  are  to  make 
the  payment,  they  should  have  an  opportunity  to  make  their  own  con- 
tracts, and  to  take  advantage  of  changes  in  the  price  of  labor. 

As  matter  of  law,  it  is  held  that  the  rule  is  invalid,  and  that  a  valid 
delivery  was  made  of  the  coal,  whereby  freight  was  earned  in  accord- 
ance with  the  terms  of  the  contract.  "Damages  in  the  nature  of 
demurrage  are  recoverable  for  detention  beyond  a  reasonable  time,  in 
unloading  only,  and  where  there  is  no  express  stipulation  to  pay 
demurrage."     (Wordin  v.  Bemis,  32  Conn.  268.) 

The  libellants  are  entitled  to  a  decree  for  the  freight  at  the  rate 
mentioned  in  the  bill  of  lading,  less  $19.55,  the  amount  paid,  to  wit,  the 
sum  of  0171.55,  and  for  damages  in  the  nature  of  demurrage,  for  a 
detention  for  six  days,  being  $114.66. 

The  claimants  appealed. 

Simeon  E.  Baldwin  and  William  K.  Townsend,  for  the  libellants. 

Johnson  T.  Piatt,  for  the  claimants. 

Blatchford,  J.  The  decision  of  this  case  in  the  District  Court  was 
placed  upon  the  ground  that  the  New  Haven  and  Northampton  Com- 
pany, as  a  common  carrier,  had  no  right  to  impose  on  the  canal-boat 
the  requirement  that  it  should,  as  a  condition  of  the  right  to  place  the 
coal  in  the  tubs  of  the  company,  attached  to  the  compan3's  derrick, 
emplo}',  to  place  it  there,  shovellers  designated  b}'  the  company,  and 
pay  such  shovellers  the  rate  of  compensation  fixed  by  the  company  for 
such  service.  It  is  contended,  in  this  court,  by  the  claimants,  that  the 
District  Court  ignored  the  status  of  the  company  as  a  wharf  owner ; 
that  the  compan}',  as  the  owner  of  the  wharf,  had  the  right  to  make 
reasonable  rules  in  regard  to  the  use  of  the  wharf;  that  the  compan}' 
had  a  right,  by  statute,  to  exact  seven  cents  per  ton  for  coal  discharged 
at  its  wharf,  as  wharfage ;  that  the  libellants'  boat  was  not  charged 
any  such  wharfage  ;  that  the  use  by  the  boat  of  the  facilities  provided 
by  the  company,  in  the  way  of  derricks,  hoisting  engines,  etc.,  is  the 
use  of  the  wharf;  that  all  which  the  company  did  was  to  refuse  to 
allow  the  boat  to  use  those  facilities,  and  thus  use  the  wharf,  unless  it 
would  permit  the  coal  to  be  shovelled  into  the  tubs  b}'  men  designated 
by  the  company ;  and  that  this  was  only  a  reasonable  regulation  made 
by  the  company,  as  a  wharf  owner.  The  difficulty  with  this  view  of  the 
case  is,  that  the  regulation  was  not  sought  to  be  enforced,  in  fact,  as  a 
regulation  of  wharfage,  or  of  the  use  of  the  wharf  by  the  boat.  There 
was  no  charge  made  against  the  boat  for  the  privilege  of  making  fast 
to  the  wharf;  and,  if  any  payment  was  to  be  made  for  the  use  of  the 
wharf,  by  depositing  the  coal  on  the  wharf,  it  was  to  be  made  by  the 
claimants,  who  were  the  owners  of  the  coal  and  the  employers  of 
the  company.  According  to  the  well  understood  acceptation  of  a  bill  of 
lading  such  as  the  one  in  question  here,  where  the  coal  was  deliverable 
"to  Glasgow  Co.,  Canal  Dock,  New  Haven," — the  Glasgow  Company 
being  a  mill  owner  at  a  place  on  the  line  of  the  railroad  company,  and 


HAYS  V.   THE  PENNSYLVANIA  COMPANY.         499 

the  latter  company  being  the  owner  of  the  Canal  Dock  at  New  Haven, 
with  its  ti'acks  running  to  and  on  the  dock,  and  having  derricks  and 
engines  for  hoisting  the  coal  in  tubs  from  the  deck  of  the  boat  to  the 
cars  on  the  tracks,  —  the  coal  was  delivered  by  the  boat  into  the  tubs, 
and  the  boat  paid  the  company  so  much  per  ton  for  hoisting  the  coal 
and  dumping  it  into  the  cars.  The  boat  had  nothing  to  do  with  paying 
anything  for  the  use  or  occupation  of  the  wharf  b}'  the  coal,  and  it  paid 
separately  for  the  hoisting.  If  the  company  had  a  right  to  charge  the 
boat  for  tying  up  to,  and  using  the  spiles  on,  the  wharf,  no  such  charge 
was  made.  There  was,  therefore,  no  foundation  for  the  requirement  as 
to  the  shovellers,  in  any  relation  between  the  company  as  a  wharf  owner 
and  the  boat. 

The  imposition  of  the  requirement  by  the  claimants*  agent,  as  a 
common  carrier,  was  not  a  reasonable  one.  In  regard  to  this  I  concur 
entirely  with  the  views  of  the  District  Judge,  in  his  decision  in  the 
court  below.  He  found  that  the  regulation  was  not  a  necessary  one. 
If  it  had  been  necessary  and  indispensable,  it  would  have  been  reason- 
able. It  might,  indeed,  have  been  reasonable  without  being  necessary. 
But,  to  be  reasonable,  it  mus  be  reasonable  as  respects  both  parties. 
In  the  present  case,  the  effect  of  the  requirement  was  to  impose  on  the 
boat  an  unnecessary  expense  of  two  cents  per  ton  of  coal,  for  shovelling 
into  the  tubs. 

There  must  be  a  decree  for  the  libellants,  in  affirmance  of  the  decree 
below,  with  costs. 


HAYS  V.  THE  PENNSYLVANIA  COMPANY. 

Circuit  Court  of  the  United  States,  N.  Ohio,  1882. 

[12  Fed.  309.] 

Baxter,  C.  J.  The  plaintiffs  were,  for  several  years  next  before  the 
commencement  of  this  suit,  engaged  in  mining  coal  at  Salineville  and 
near  defendant's  road,  for  sale  in  the  Cleveland  market.  They  were 
wholly  dependent  on  the  defendant  for  transportation.  Their  com- 
plaint is  that  the  defendant  discriminated  against  them,  and  in  favor 
of  their  competitors  in  business,  in  the  rates  charged  for  carrying  coal 
from  Salineville  to  Cleveland.  But  the  defendant  traversed  this  allega- 
tion. The  issue  thus  made  was  tried  at  the  last  terra  of  the  court, 
when  it  appeared  in  evidence  that  defendant's  regular  price  for  car- 
rying coal  between  the  points  mentioned,  in  1876,  was  $1.60  per  ton, 
with  a  rebate  of  from  30  to  70  cents  per  ton  to  all  persons  or  com- 
panies shipping  5,000  tons  or  more  during  the  year,  — the  amount  of 
rebate  being  graduated  by  the  quantity  of  freight  furnished  by  each 
shipper.  Under  this  schedule  the  plaintiffs  were  required  to  pay 
higher  rates  on  the  coal  shipped  by  them  than  were  exacted  from 
other  and  rival  parties  who  shipped  larger  quantities.     But  the  defend- 


500  HAYS  V.   THE  PENNSYLVANIA  COMPANY. 

ant  contended,  if  the  discrimination  was  made  in  good  faith,  and  for 
the  purpose  of  stimulating  production  and  increasing  its  tonnage,  it 
was  both  reasonable  and  just,  and  within  the  discretion  confided  by 
law  to  every  common  carrier.  The  court,  however,  entertained  the 
contrary  opinion,  and  instructed  the  jury  that  the  discrimination  com- 
plained of  and  proven,  as  above  stated,  was  contrary  to  law,  and  a 
wrong  to  plaintiffs,  for  which  they  were  entitled  to  recover  the  dam- 
ages resulting  to  them  therefrom,  to  wit,  the  amount  paid  by  the 
plaintiffs  to  the  defendant  for  the  transportation  of  their  coal  from 
Salineville  to  Cleveland  (with  interest  thereon)  in  excess  of  the  rates 
accorded  by  defendant  to  their  most  favored  competitors.  The  jury, 
under  these  instructions,  found  for  the  plaintiffs,  and  assessed  their 
damages  at  $4,585.  The  defendant  thereupon  moved  for  a  new  trial, 
on  the  ground  that  the  instructions  given  were  erroneous,  and  this  is 
the  question  we  are  now  called  on  to  decide.  If  the  instructions  are 
correct  the  defendant's  motion  must  be  overruled ;  otherwise  a  new 
trial  ought  to  be  granted. 

A  reference  to  recognized  elementary  principles  will  aid  in  a  cor^ 
rect  solution  of  the  problem.  The  defendant  is  a  common  carrier  by 
rail.  Its  road,  though  owned  by  the  corporation,  was  nevertheless 
constructed  for  public  uses,  and  is,  in  a  qualified  sense,  a  public 
highway.  Hence  everybod}'  constituting  a  part  of  the  public,  for 
whose  benefit  it  was  authorized,  is  entitled  to  an  equal  and  impar- 
tial participation  in  the  use  of  the  facilities  it  is  capable  of  affording. 
Its  ownership  by  the  corporation  is  in  trust  as  well  for  the  public  as 
for  the  shareholders ;  but  its  first  and  primary  obligation  is  to  the 
public.  "We  need  not  recount  all  these  obligations.  It  is  enough  for 
present  purposes  to  say  that  the  defendant  has  no  right  to  make 
unreasonable  and  unjust  discriminations.  But  what  are  such  dis- 
criminations? No  rule  can  be  formulated  with  sufficient  fiexibility^ 
to  apply  to  every  case  that  may  arise.  It  may,  however,  be  said 
that  it  is  only  when  the  discrimination  enures  to  the  undue  advantage 
of  one  man,  in  consequence  of  some  injustice  inflicted  on  another,  that 
the  law  intervenes  for  the  protection  of  the  latter.  Harmless  discrimi- 
nation may  be  indulged  in.  For  instance,  the  carrying  of  one  person, 
who  is  unable  to  pay  fare,  free,  is  no  injustice  to  other  passengers  who 
may  be  required  to  pay  the  reasonable  and  regular  rates  fixed  by  the 
company.  Nor  would  the  carrying  of  supplies  at  nominal  rates  to 
communities  scourged  by  disease,  or  rendered  destitute  by  floods  or 
other  casualt}',  entitle  other  communities  to  have  their  supplies  carried 
at  the  same  rate.  It  is  the  custom,  we  believe,  for  railroad  companies 
to  carry  fertilizers  and  machinery  for  mining  and  manufacturing  pur- 
poses to  be  employed  along  the  lines  of  their  respective  roads  to  de- 
velop the  countr}'  and  stimulate  productions,  as  a  means  of  insuring  a 
permanent  increase  of  their  business,  at  lower  rates  than  are  charged 
on  other  classes  of  freight,  because  such  discrimination,  while  ii  tends 
to  advance  the  interest  of  all,  works  no  injustice  to  any  one.     Freight 


HAYS  V.   THE  PENNSYLVANIA  COMPANY.         501 

carried  over  long  distances  may  also  be  carried  at  a  reasonablj*  less  rate 
per  mile  than  freiglit  transported  for  shorter  distances,  simply  because 
it  costs  less  to  perform  the  service.  For  the  same  reason  passengers 
may  be  divided  into  different  classes,  and  the  price  regulated  in  accord- 
ance with  the  accommodations  furnished  to  each,  because  it  costs  less 
to  carry  an  emigrant,  with  the  accommodations  furnished  to  that  class, 
than  it  does  to  carry  an  occupant  of  a  palace  car.  And  for  a  like  reason 
an  inferior  class  of  freight  may  be  carried  at  a  less  rate  than  first-class 
merchandise  of  greater  value  and  requiring  more  labor,  care,  and 
responsibility  in  the  handling.  It  has  been  held  that  20  separate  par- 
cels done  up  in  one  package,  and  consigned  to  the  same  person,  maj'  be 
carried  at  a  less  rate  per  parcel  than  20  parcels  of  the  same  character 
consigned  to  as  man}'  different  persons  at  the  same  destination,  because 
it  is  supposed  that  it  costs  less  to  receive  and  deliver  one  package  con- 
taining 20  parcels  to  one  man,  than  it  does  to  receive  and  deliver  20 
different  parcels  to  as  many  different  consignees- 
Such  are  some  of  the  numerous  illustrations  of  the  rule  that  might 
be  given.  But  neither  of  them  is  exactly  like  the  case  before  us,  either 
in  its  facts  or  principles  involved.  The  case  of  Nicholson  v.  G.  W.  R.  Co., 
4  C.  B.  (N.  S.)  366,  is  in  its  facts  more  nearl}-  like  the  case  under  con- 
sideration than  any  other  case  that  we  have  been  able  to  find.  This 
was  an  application,  under  the  railway  and  traffic  act,  for  an  injunction 
to  restrain  the  railroad  company  from  giving  lower  rates  to  the  Ruaboa 
Coal  Company  than  were  given  to  the  complainant  in  that  case,  in  the 
shipment  of  coal,  in  which  it  appeared  that  there  was  a  contract  be- 
tween the  railroad  company  and  the  Ruabon  Coal  Compan}-,  whereby 
the  coal  company  undertook  to  ship,  for  a  period  of  10  years,  as  much 
coal  for  a  distance  of  at  least  100  miles  over  defendant's  road  as  would 
produce  an  annual  gross  revenue  of  £40,000  to  the  railroad  company, 
in  fully  loaded  trains,  at  the  rate  of  seven  trains  per  week.  In  passing 
on  these  facts  the  court  said  that  in  considering  the  question  of  undue 
preference  the  fair  interest  of  the  railroad  compan}'  ought  to  be  taken 
into  tlie  account ;  that  the  preference  or  prejudice,  referred  to  by  the 
statute,  must  be  undue  or  unreasonable  to  be  within  the  prohibition ; 
and  that,  although  it  was  manifest  that  the  coal  company  had  many 
and  important  advantages  in  carrying  their  coal  on  the  railroad  as 
against  the  complainant  and  other  coal  owners,  still  the  question  re- 
mained, were  they  undue  or  unreasonable  advantages?  And  this,  the 
court  said,  mainly  depended  on  the  adequacy  of  the  consideration  given 
by  the  coal  company  to  the  railroad  companj'  for  the  advantages  afforded 
by  the  latter  to  the  coal  company.  And  because  it  appeared  that  the 
cost  of  carrying  coal  in  fully  loaded  trains,  regularly  furnished  at  the 
rate  of  seven  trains  per  week,  was  less  per  ton  to  the  railway  company 
than  coal  delivered  in  the  usual  wa}',  and  at  irregular  intervals,  and  in 
unequal  quantities,  in  connection  with  the  coal  compan3''s  undertaking 
to  ship  annually  coal  enough  over  defendant's  road,  for  at  least  a 
distance  of  100  miles,  to  produce  a  gross  revenue  to  the  railroad  of 


502         HAYS  V.   THE  PENNSYLVANIA  COMPANY. 

£40,000,  the  court  held  that  the  discrimination  complained  of  in  the 
case  was  neither  undue  nor  unreasonable,  and  therefore  denied  the 
application. 

This  case  seems  to  have  been  well  considered,  and  we  have  no  dis- 
position to  question  its  authorit}*.  Future  experience  may  possibly 
call  for  some  modification  of  the  principle  therein  announced.  But 
this  case  calls  for  no  such  modification,  inasmuch  as  the  facts  of  that 
case  are  very  different,  when  closely  analj'zed,  from  the  facts  proven 
in  this  one.  In  the  former  the  company,  in  whose  favor  the  discrimi- 
nation was  made,  gave,  in  the  judgment  of  the  court,  an  adequate  con- 
sideration for  the  advantages  conceded  to  it  under  and  in  virtue  of  its 
contract.  It  undertook  to  guarant}'  £40,000  worth  of  tonnage  per  year 
for  10  years  to  the  railroad  company,  and  to  tender  the  same  for  ship- 
ment in  fully  loaded  trains,  at  the  rate  of  seven  trains  per  week.  It 
was  in  consideration  of  these  obligations  —  which,  in  the  judgment  of 
the  court,  enabled  the  railroad  company  to  perform  the  service  at  less 
expense  —  the  court  held  that  the  advantages  secured  by  the  contract 
to  the  coal  company  were  neither  undue  nor  unreasonable.  But  there 
are  no  such  facts  to  be  found  in  this  case.  There  was  in  this  case  no 
undertaking  by  any  one  to  furnish  any  specific  quantit}'  of  freight  at 
stated  periods  ;  nor  was  any  one  bound  to  tender  coal  for  shipment  in 
fully  loaded  trains.  In  these  particulars  the  plaintiffs  occupied  com- 
mon ground  with  the  parties  who  obtained  lower  rates.  Each  tendered 
coal  for  transportation  in  the  same  condition  and  at  such  times  as  suited 
his  or  their  convenience.  The  discrimination  complained  of  rested  ex- 
clusively on  the  amount  of  freight  supplied  b}^  the  respective  shippers 
during  the  year.  Ought  a  discrimination  resting  exclusively  on  such  a 
basis  to  be  sustained?  If  so,  then  the  business  of  the  country  is,  in 
some  degree,  subject  to  the  will  of  railroad  oflBcials ;  for,  if  one  man 
engaged  in  mining  coal,  and  dependent  on  the  same  railroad  for  trans- 
portation to  the  same  market,  can  obtain  transportation  thereof  at  from 
25  to  50  cents  per  ton  less  than  another  competing  with  him  in  business, 
solely  on  the  ground  that  he  is  able  to  furnish  and  does  furnish  the  larger 
quantity  for  shipment,  the  small  operator  will  sooner  or  later  be  forced 
to  abandon  the  unequal  contest  and  surrender  to  his  more  opulent  rival. 
If  the  principle  is  sound  in  its  application  to  rival  parties  engaged  in 
mining  coal,  it  is  equally  applicable  to  merchants,  manufacturers,  mil- 
lers, dealers  in  lumber  and  grain,  and  to  everybody  else  interested  in 
any  business  requiring  anj'  considerable  amount  of  transportation  by 
rail ;  and  it  follows  that  the  success  of  all  such  enterprises  would  de- 
pend as  much  on  the  favor  of  railroad  officials  as  upon  the  energies 
and  capacities  of  the  parties  prosecuting  the  same. 

It  is  not  difficult,  with  such  a  ruling,  to  forecast  the  consequences. 
The  men  who  control  railroads  would  be  quick  to  appreciate  the  power 
with  which  such  a  holding  would  invest  them,  and,  it  may  be,  not  slow 
to  make  the  most  of  their  opportunities,  and  perhaps  tempted  to  favor 
tbeir  friends  to  the  detriment  of  their  personal  or  political  opponents ; 


MENACHO  V.  WARD.  603 

or  demand  a  division  of  the  profits  realized  from  such  collateral  pur- 
suits as  could  be  favored  or  depressed  by  discriminations  for  or  against 
them ;  or  else,  seeing  the  augmented  power  of  capital,  organize  into 
overshadowing  combinations  and  extinguish  all  petty  competition,  mo- 
nopolize business,  and  dictate  the  price  of  coal  and  every  other  com- 
moditj'  to  consumers.  We  say  these  results  might  follow  the  exercise 
of  such  a  right  as  is  claimed  for  railroads  in  this  case.  But  we  think 
no  such  power  exists  in  them  ;  they  have  been  authorized  for  the  com- 
mon benefit  of  every  one,  and  cannot  be  lawfully  manipulated  for  the 
advantage  of  anj'  class  at  the  expense  of  any  other.  Capital  needs  no 
such  extraneous  aid.  It  possesses  inherent  advantages,  which  cannot 
be  taken  from  it.  But  it  has  no  just  claim,  by  reason  of  its  accu- 
mulated strength,  to  demand  the  use  of  the  public  highways  of  the 
country,  constructed  for  the  common  benefit  of  all,  on  more  favorable 
terms  than  are  accorded  to  the  humblest  of  the  land ;  and  a  discrimi- 
nation in  favor  of  parties  furnishing  the  largest  quantity  of  freight,  and 
solely  on  that  ground,  is  a  discrimination  in  favor  of  capital,  and  is 
contrary  to  a  sound  public  polic}',  violative  of  that  equality  of  right 
guaranteed  to  every  citizen,  and  a  wrong  to  the  disfavored  party,  for 
which  the  courts  are  competent  to  give  redress. 

The  motion,  therefore,  for  a  new  trial  will  be  denied,  and  a  judgment 
entered  on  the  verdict  for  the  damages  assessed  and  the  costs  of  the 
suit. 

Welker,  D.  J.,  concurred. 


MENACHO  V.   WARD. 
Circuit  Court  of  the  United  States,  S.  New  York,  1886. 

[27  Fed.  529.] 

Wallace,  J.  The  complainants  have  filed  a  bill  in  each  of  these 
causes  to  restrain  the  defendants  from  making  discriminations  for  trans- 
portation against  the  complainants,  which  consist  in  charging  them  a 
higher  rate  of  freight  than  is  charged  by  defendants  to  other  shippers 
of  merchandise  generally.  A  motion  is  now  made  for  a  preliminary 
injunction.  The  facts  in  each  case  are  essentially  the  same,  and  both 
cases  may  be  considered  together. 

The  complainants  are  merchants  domiciled  in  the  city  of  New  York, 
and  engaged  in  commerce  between  that  port  and  the  island  of  Cuba. 
The  defendants  are  proprietors  or  managers  of  steamship  lines  plying 
between  New  York  and  Cuba.  Formerly  the  business  of  transportation 
between  the  two  places  was  carried  on  by  sailing  vessels.  In  1877  the 
line  of  steamships  known  as  "  Ward's  Line  "  was  established,  and  in 
1881  was  incorporated  by  the  name  of  the  New  York  &  Cuba  Mail 
Steamship  Line  under  the  general  laws  of  the  State  of  New  York.     At 


604  MENACHO  V.   WARD. 

the  time  of  the  incorporation  of  this  compan}-  the  line  of  steamships 
owned  by  the  defendants  Alexandre  &  Sons  had  also  been  established. 
These  two  lines  were  competitors  between  New  York  and  Cuba,  but  for 
several  years  both  lines  have  been  operated  under  a  traffic  agreement 
between  themselves,  by  which  uniform  rates  are  charged  by  each  to  the 
public  for  transportation.  The  two  lines  are  the  only  lines  engaged  in 
the  business  of  regular  transportation  between"  New  York  and  Cuba ; 
and  unless  merchants  choose  to  avail  themselves  of  the  facilities  offered 
by  them,  they  are  obliged  to  ship  their  merchandise  by  vessels  or 
steamers  which  may  casuall}'  ply  between  the  two  places. 

It  is  alleged  by  the  complainant  that  the  defendants  liave  announced 
generally  to  New  York  merchants  engaged  in  Cuban  trade  that  they 
must  not  patronize  steamships  which  offer  for  a  single  vojage,  and  on 
various  occasions  when  other  steamships  have  attempted  to  procure 
cargoes  from  New  York  to  Havana  have  notified  shippers  that  those 
employing  such  steamships  would  thereafter  be  subjected  to  onerous 
discriminations  by  the  defendants.  The  defendants  allege  in  their 
answer  to  the  bill,  in  effect,  that  it  has  been  found  necessary,  for  the 
purpose  of  securing  sufficient  patronage,  to  make  differences  in  rates  of 
freight  between  shippers  in  favor  of  those  who  will  agree  to  patronize 
the  defendants  exclusively.  Within  a  few  months  before  the  commence- 
ment of  this  suit  two  foreign  steamers  were  sent  to  New  York  to  take 
cargoes  to  Havana,  and  the  complainants  were  requested  to  act  as 
agents.  Thereupon  the  complainants  were  notified  by  the  defendants 
that  they  would  be  "placed  upon  the  black-list  "  if  they  shipped  goods 
by  these  steamers,  and  that  their  rates  of  freight  would  thereafter  be 
advanced  on  all  goods  which  they  might  have  occasion  to  send  bj'  the 
defendants.  Since  that  time  the  defendants  have  habitually-  charged 
the  complainants  greater  rates  of  freight  than  those  merchants  who 
shipped  exclusively  b}-  the  defendants.  The  freight  charges,  by  the 
course  of  business,  are  paid  by  consignees  at  the  Cuban  ports.  The 
complainants  have  attempted  to  pa}'  the  freight  in  advance,  but  have 
found  this  course  impracticable  because  their  consignees  are  precluded 
from  deducting  damages  or  deficiencies  upon  the  arrival  of  the  goods 
from  the  charges  for  freight,  and  as  a  result  some  of  the  complainants' 
correspondents  in  Cuba  refuse  to  continue  business  relations  with  them, 
being  unwilling  to  submit  to  the  annoyance  of  readjusting  overcharges 
with  complainants.  Upon  this  state  of  facts  the  complainants  have 
founded  the  allegation  of  their  bill  that  the  defendants  "  have  arbi- 
trarily refused  them  equal  terms,  facilities,  and  accommodations  to 
those  granted  and  allowed  by  the  defendants  to  other  shippers,  and 
have  arbitrarily  exacted  from  them  a  much  greater  rate  of  freight  than 
the  defendants  have  at  the  same  time  charged  to  shippers  of  merchan- 
dise generally  as  a  condition  of  receiving  and  transporting  merchandise." 
They  apply  for  an  injunction  upon  the  theory  that  their  grievances  can- 
not be  redressed  b}*  an  action  at  law. 

It  is  contended  for  the  complainants  that  a  common  carrier  owes  an 


MEN  AC  HO   V.   WAED.  505 

equal  duty  to  every  member  of  the  community,  and  is  not  permitted  to 
make  unequal  preferences  in  favor  of  one  person,  or  class  of  persons,  as 
against  another  person  or  class.  The  defendants  insist  that  it  is  permit- 
ted to  common  carriers  to  make  reasonable  discriminations  in  the  rates 
demanded  from  the  public ;  that  they  are  not  required  to  carry  for  all 
at  the  same  rates ;  that  discriminations  are  reasonable  which  are  based 
upon  the  quantity  of  goods  sent  by  different  shippers ;  and  that  the 
discrimination  in  the  present  case  is  essentially  such  a  discrimination, 
and  has  no  element  of  personal  preference,  and  is  necessary  for  the 
protection  of  the  defendants. 

Unquestionably  a  common  carrier  is  alwaj's  entitled  to  a  reasonable 
compensation  for  his  services.  Hence  it  follows  that  he  is  not  required 
to  treat  all  those  who  patronize  him  with  absolute  equalit}'.  It  is  his 
privilege  to  charge  less  than  fair  compensation  to  one  person,  or  to  a 
class  of  persons,  and  others  cannot  justly  complain  so  long  as  he  carries 
on  reasonable  terms  for  them.  Respecting  preferences  in  rates  of  com- 
pensation, his  obligation  is  to  charge  no  more  than  a  fair  return  in  each 
particular  transaction,  and  except  as  thus  restricted  he  is  free  to  dis- 
criminate at  pleasure.  This  is  the  equal  justice  to  all  which  the  law 
exacts  from  the  common  carrier  in  his  relations  with  the  public.  Bax  • 
endale  v.  Eastern  Counties  R.  Co.,  4  C.  B.  (N.  S.)  78 ;  Branley  v. 
Southeastern  R.  Co.,  12  C.  B.  (N.  S.)  74;  Fitchburg  R.  Co.  v.  Gage, 
12  Gray,  393  ;  Sargent  v.  Boston  &  L.  R.  Corp.,  115  Mass.  416,  422.^ 

In  the  present  case  the  question  whether  the  defendants  refuse  to 
carry  for  the  complainants  at  a  reasonable  compensation  resolves  itself 
into  another  form.  Can  the  defendants  lawfully  require  the  complain- 
ants to  pay  more  for  carrying  the  same  kind  of  merchandise,  under  like 
conditions,  to  the  same  places,  than  they  charge  to  others,  because  the 
complainants  refuse  to  patronize  the  defendants  exclusively,  while  other 
shippers  do  not?  The  fact  that  the  carrier  charges  some  less  than 
others  for  the  same  service  is  merel}'  evidence  for  the  latter,  tending  to 
show  that  he  charges  them  too  much ;  but  when  it  appears  that  the 
charges  are  greater  than  those  ordinarily  and  uniformly  made  to  others 
for  similar  services,  the  fact  is  not  only  competent  evidence  against  the 
carrier,  but  cogent  evidence,  and  shifts  upon  him  the  burden  of  justify- 
ing the  exceptional  charge.  The  estimate  placed  by  a  party  upon  the 
value  of  his  own  services  of  property  is  always  sufficient,  against  him, 
to  establish  the  real  value  ;  but  it  has  augmented  probative  force,  and 
is  almost  conclusive  against  him,  when  he  has  adopted  it  in  a  long 
continued  and  extensive  course  of  business  dealings,  and  held  it  out  as 
a  fixed  and  notorious  standard  for  the  information  of  the  public. 

The  defendants  assume  to  justify  upon  the  theory  that  a  carrier  may 
regulate  his  charges  upon  the  basis  of  the  quantit}'  of  goods  delivered 
to  him  for  transportation  by  different  shippers,  and  that  their  discrimi- 
nation against  the  plaintiff  is  in  substance  one  made  with  reference  to 

^  The  court  here  cited  passages  from  the  opinions  in  Messenger  v.  Pennsjlrania  R. 
B.,  37  N.  J.  L.  531,  and  McDuffee  v.  Portlaixd  &  R.  R.  R.,  52  N.  H.  430.  —Ed. 


506  MENACHO   V.   WARD. 

the  qoanlity  of  merchandise  furnished  by  them  for  carriage.  Courts  of 
law  have  always  recognized  the  rights  of  carriers  to  regulate  their 
charges  with  reference  to  the  quantity  of  merchandise  carried  for  the 
shipper,  either  at  a  given  shipment,  or  during  a  given  period  of  time, 
although  public  sentiment  in  many  communities  has  objected  to  such 
discriminations,  and  crystallized  into  legislative  condemnation  of  the 
practice.  By  the  English  statutes  (17  &  18  Vict.  c.  31)  railway  and 
canal  carriers  are  prohibited  from  "  giving  an}-  undue  or  unreasonable 
preference  or  advantage  to  or  in  favor  of  any  particular  description  of 
traffic,  in  any  respect  whatever,"  in  the  receiving,  forwarding,  and  de- 
livery of  traffic ;  but  under  these  provisions  of  positive  law  the  courts 
have  held  that  it  is  not  an  undue  preference  to  give  lower  rates  for 
larger  quantities  of  freight.  Ransome  ?'.  Eastern  C.  R.  Co.,  1  Nev.  & 
McN.  63,  155  ;  Nicholson  v.  Great  Western  R}-.  Co.,  Id.  121 ;  Strick 
V.  Swansea  Canal  Co.,  16  C.  B.  (N.  S.)  245 ;  Greenop  v.  S.  E.  R.  Co., 
2  Nev.  &  McN.  319. 

These  decisions  proceed  upon  the  ground  that  the  carrier  is  entitled 
to  take  into  consideration  the  question  of  his  own  profits  and  interests 
in  determining  what  charges  are  reasonable.  He  may  be  able  to  carry 
a  large  quantity  of  goods,  under  some  circumstances,  at  no  greater  ex- 
pense than  would  be  required  to  carry  a  smaller  quantity'.  His  fair 
compensation  for  carrying  the  smaller  quantity  might  not  be  correcth* 
measured  b}'  the  rate  per  pound,  per  bushel,  or  per  mile  charged  for 
the  larger.  If  he  is  assured  of  regular  shipments  at  given  times,  he 
may  be  able  to  make  more  economical  arrangements  for  transportation. 
By  extending  special  inducements  to  the  public  for  patronage  he  maj' 
be  able  to  increase  his  business,  without  a  corresponding  increase  of 
capital  or  expense  in  transacting  it,  and  thus  derive  a  larger  profit. 
He  is  therefore  justified  in  making  discriminations  b}*  a  scale  of  rates 
having  reference  to  a  standard  of  fair  remuneration  of  all  who  patronize 
him.  But  it  is  impossible  to  maintain  that  any  analogy  exists  between 
a  discrimination  based  upon  the  quantity  of  business  furnished  b}*  dif- 
ferent classes  of  shippers,  and  one  which  altogether  ignores  this  consid- 
eration, and  has  no  relation  to  the  profits  or  compensation  which  the 
carrier  ought  to  derive  for  a  given  quantum  of  service. 

The  proposition  is  speciously  put  that  the  carrier  may  reasonably 
discriminate  between  two  classes  of  shippers,  the  regular  and  the  casual ; 
and  that  such  is  the  only  discrimination  here.  Undoubtedly  the  carrier 
may  adopt  a  commutative  system,  whereby  those  who  furnish  him  a 
regular  traffic  may  obtain  reduced  rates,  just  as  he  may  properly  reg- 
ulate his  charges  upon  the  basis  of  the  quantity  of  traffic  which  he 
receives  from  different  classes  of  shippers.  But  this  is  not  the  proposi- 
tion to  be  discussed.  The  defendants  assume  to  discriminate  jigainst 
the  complainants,  not  because  the}-  do  not  furnish  them  a  regular  busi- 
ness, or  a  given  number  of  shipments,  or  a  certain  quantity  of  merchan- 
dise to  carry,  but  because  they  refuse  to  patronize  the  defendants 
exclusively.    The  question  is  whether  the  defendants  refuse  to  carry  for 


MENACHO  V.    WARD.  507 

the  complainants  on  reasonable  terms.  The  defendants,  to  maintain  the 
affirmative,  assert  that  their  charges  are  fair  because  they  do  not  have 
the  whole  of  the  complainants'  carrying  business.  But  it  can  never  be 
material  to  consider  whether  the  carrier  is  permitted  to  enjoy  a  monopoly 
of  the  transportation  for  a  particular  individual,  or  class  of  individuals, 
in  ascertaining  what  is  reasonable  compensation  for  the  services  actu- 
ally rendered  to  him  or  them.  Such  a  consideration  might  be  influen- 
tial in  inducing  parties  to  contract  in  advance  ;  but  it  has  no  legitimate 
bearing  upon  the  value  of  services  rendered  without  a  special  contract, 
or  which  are  rendered  because  the  law  requires  them  to  be  rendered  for 
a  fair  remuneration. 

A  common  carrier  "  is  in  the  exercise  of  a  sort  of  public  office,  and 
has  public  duties  to  perform,  from  which  he  should  not  be  permitted  to 
exonerate  himself"  Nelson,  J.,  in  New  Jersey  Steam  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  344.  His  obligations  and  liabilities  are  not 
dependent  upon  contract,  though  they  may  be  modified  and  limited  by 
contract.  They  are  imposed  by  the  law,  from  the  public  nature  of  his 
employment.  Hannibal  R.  R.  v.  Swift,  12  Wall.  262.  As  their  busi- 
ness is  "  aflected  with  a  public  interest,"  it  is  subject  to  legislativt 
regulation.  "  In  matters  which  do  affect  the  public  interest,  and  as  to 
which  legislative  control  ma}'  be  exercised,  if  there  are  no  statutory 
regulations  upon  the  subject,  the  courts  must  determine  what  is  reason- 
able." Waite,  C.  J.,  in  Munn  v.  Illinois,  94  U.  S.  113,  134.  It  is 
upon  this  foundation,  and  not  alone  because  the  business  of  common 
carriers  is  so  largely  controlled  bj'  corporations  exercising  under  fran- 
chises the  privileges  which  are  held  in  trust  for  the  public  benefit,  that 
the  courts  have  so  strenuoush'  resisted  their  attempts,  by  special  con- 
tracts or  unfair  preferences,  to  discriminate  between  those  whom  it  is 
their  duty  to  serve  impartially.  And  the  courts  are  especially  solicitous 
to  discountenance  all  contracts  or  arrangements  by  these  public  servants 
which  savor  of  a  purpose  to  stifle  competition  or  repress  rivalry  in  the 
departments  of  business  in  which  they  ply  their  vocation.  Illustrations 
are  found  in  the  cases  of  State  v.  Hartford  &  N.  H.  R.  Co.,  29  Conn. 
538  ;  Hooker  v.  Vandewater,  4  Denio,  849  ;  W.  U.  Tel.  Co.  v.  Chicago 
&  P.  R.  Co.,  86  111.  246  ;  Coe  v.  Louisville  &  N.  R.  Co.,  3  Fed. 
Rep.  775. 

The  vice  of  the  discrimination  here  is  that  it  is  calculated  to  coerce 
all  those  who  have  occasion  to  employ  common  carriers  between  New 
York  and  Cuba  from  employing  such  agencies  as  may  offer.  Its  ten- 
dency is  to  deprive  the  public  of  their  legitimate  opportunities  to  obtain 
carriage  on  the  best  terms  they  can.  If  it  is  tolerated  it  will  result 
practically  in  giving  the  defendants  a  monopoly  of  the  carrying  trade 
between  these  places.  Manifestly  it  is  enforced  b}'  the  defendants  in 
order  to  discourage  all  others  from  attempting  to  serve  the  public  as 
carriers  between  these  places.  Such  discrimination  is  not  only  unrea- 
sonable, but  is  odious.  Ordinarily  the  remedj'  against  a  carrier  is  at 
law  for  damages  for  a  refusal  to  carry,  or  to  recover  the  excess  of 


508  ROOT   V.   LONG  ISLAND  EAILROAD. 

charges  paid  to  obtain  the  delivery  of  goods.   The  special  circumstances 
in  this  case  indicate  that  such  a  remedy  would  not  afford  complete  and 
adequate  redress,  "  as  practical  and  efficient  to  the  ends  of  justice  "  as 
the  remedy  in  equity-.     Watson  v.  Sutherland,  5  Wall.  74. 
The  motion  for  an  injunction  is  granted. 


ROOT  V.   LONG  ISLAND  RAILROAD. 
CouBT  OP  Appeals  of  New  York,  Second  Division,  1889. 

[114  N.  Y.  300 ;  21  N.  E.  403.] 

Haight,  J.  In  June,  1876,  the  defendant  and  one  Quintard  entered 
into  a  written  contract,  which,  among  other  things,  provided  that 
Quintard  should  build  at  Long  Island  City  upon  the  lands  of  the  de- 
fendant a  dock  250  feet  long  and  40  feet  wide,  and  erect  thereon  a 
pocket  for  holding  and  storing  coal,  according  to  certain  plans  and 
specifications  annexed.  The  defendant  was  to  have  the  use  of  the 
south  side  of  the  dock,  and  also  of  30  feet  of  the  shore  end,  and  the 
right  to  use  the  other  portions  thereof  when  not  required  by  Quintard. 
In  consideration  therefor  the  defendant  agreed  with  Quintard  to  trans- 
port in  its  cars  all  the  coal  in  car-loads  offered  for  transportation  by 
him  at  a  rebate  of  15  cents  per  ton  of  2,240  pounds  from  the  regular 
tariff  rates  for  coal  transported  by  the  defendant  from  time  to  time, 
except  in  the  case  of  the  coal  carried  for  the  Brooklyn  Water- Works 
Company,  with  which  company  the  defendant  reserved  the  right  to 
make  a  special  rate,  which  should  not  be  considered  "the  regular 
tariff  rate."  The  defendant  also  agreed  with  Quintard  to  provide 
him  with  certain  yard  room  and  office  room  free  of  rent,  and  the  con- 
tract was  to  continue  for  the  term  of  10  years,  and  at  the  termination 
of  the  contract  the  dock  and  structures  were  to  be  appraised,  and  the 
value  thereof,  less  the  sum  of  $2,000  advanced  by  the  defendant,  to 
be  paid  to  Quintard.  Pursuant  to  this  agreement  the  dock  and  coal 
pocket  were  constructed  at  an  expense  of  617,000,  and  coal  in  large 
quantities  was  shipped  over  the  defendant's  road  by  Quintard  or  his 
assignee  under  the  contract,  and  it  is  for  the  rebate  of  15  cents  per 
ton  upon  the  coal  so  shipped  that  this  action  was  brought.  The 
defence  is  that  the  contract  was  against  public  policy,  and  was  there- 
fore illegal  and  void. 

The  defendant  is  a  railroad  corporation  oi'ganized  under  the  lawd 
of  the  State,  and  was  therefore  a  common  carrier  of  passengers  and 
freight,  and  was  subject  to  the  duties  and  liabilities  of  such.  These 
duties  and  liabilities  have  often  been  the  subject  of  judicial  consid- 
eration in  the  different  States  of  the  Union.  In  Illinois  it  has  been 
held  that  a  railroad  corporation,  although  permitted  to  establish  its 
rates  for  transportation,  must  do  so  without  injurious  discrimination 


ROOT  V.   LONG  ISLAND   RAILROAD.  509 

to  individuals;  that  its  charges  must  be  reasonable.  Railroad  Co. 
V.  People,  67  III.  11;  Vincent  v.  Railroad  Co.,  49  111.  33.  In  Ohio  it 
was  held  that  where  a  railroad  company  gave  a  lower  rate  to  a  favored 
shipper  with  the  intent  to  give  such  shipper  an  exclusive  monopoly, 
thus  affecting  the  business  and  destroying  the  trade  of  other  shippers, 
the  latter  have  the  right  to  require  an  equal  rate  for  all  under  like 
circumstances.  Scofield  u.  Railway  Co.,  43  Ohio  St.  571.  In  New 
Jersey  it  has  been  held  that  an  agreement  by  a  railroad  company  to 
carry  goods  for  certain  persons  at  a  cheaper  rate  than  it  would  carry 
under  the  same  condition  for  others  is  void,  as  creating  an  illegal 
preference ;  that  common  carriers  are  public  agents,  transacting  their 
business  under  an  obligation  to  observe  equality  towards  every  mem- 
ber of  the  community,  to  serve  all  persons  alike,  without  giving  unjust 
or  unreasonable  advantages  by  way  of  facilities  for  the  carriage,  or 
rates  for  the  transportation,  of  goods.  Messenger  v.  Railroad  Co., 
36  N.  J.  Law,  407;  State  v.  Railroad  Co.,  48  N.  J.  Law,  55.  In 
New  Hampshire  it  has  been  held  that  a  railroad  is  bound  to  carry  at 
reasonable  rates  commodities  for  all  persons  who  offer  them,  as  early 
as  means  will  allow;  that  it  cannot  directly  exercise  unreasonable 
discrimination  as  to  who  and  what  it  will  carry;  that  it  cannot  im- 
pose unreasonable  or  unequal  terms,  facilities,  or  accommodations. 
McDuffee  v.  Railroad,  52  N.  H.  430.  To  similar  effect  are  cases  in 
other  States.  Express  Co.  v.  Railroad  Co.,  57  Me.  188;  Shippers. 
Railroad  Co.,  47  Pa.  St.  338;  Railroad  Co.  v.  Gage,  12  Gray,  393; 
Menacho  v.  Ward,  27  Fed.  Rep.  529.  In  New  York  the  authorities 
are  exceedingly  meagre.  The  question  was  considered  to  some  extent 
in  the  case  of  Killmer  v.  Railroad  Co.,  100  N.  Y.  395,  in  which  it 
was  held  that  the  reservation  in  the  general  act  of  the  power  of  the 
legislature  to  regulate  and  reduce  charges,  where  the  earnings  exceeded 
10  per  cent  of  the  capital  actually  expended,  did  not  relieve  the  com- 
pany from  its  common  law  duty  as  a  common  carrier;  that  the  ques- 
tion as  to  what  was  a  reasonable  sum  for  the  transportation  of  goods 
on  the  lines  of  a  railroad  in  a  given  case  is  a  complex  question,  into 
which  enter  many  elements  for  consideration. 

In  determining  the  duty  of  a  common  carrier,  we  must  be  reason- 
able and  just.  The  carrier  should  be  permitted  to  charge  reasonable 
compensation  for  the  goods  transported.  He  should  not,  however, 
be  permitted  to  unreasonably  or  unjustly  discriminate  against  other 
individuals,  to  the  injury  of  their  business,  where  the  conditions  are 
equal.  So  far  as  is  reasonable,  all  should  be  treated  alike ;  but  we 
are  aware  that  absolute  equality  cannot  in  all  cases  be  required,  for 
circumstances  and  conditions  may  make  it  impossible  or  unjust  to  the 
carrier.  The  carrier  may  be  able  to  carry  freight  over  a  long  distance 
at  a  less  sum  than  he  could  for  a  short  distance.  He  may  be  able  to 
carry  a  large  quantity  at  a  less  rate  than  he  could  a  smaller  quantity. 
The  facilities  for  loading  and  unloading  may  be  different  in  different 
places,  and  the  expenses  may  be  greater  in  some  places  than  in  others. 


510  BOOT   V.   LONG   ISLAND   KAILROAD. 

Numerous  circumstances  may  intervene  which  bear  upon  the  cost 
and  expenses  of  transportation,  and  it  is  but  just  to  the  carrier  that 
he  be  permitted  to  take  these  circumstances  into  consideration  in 
determining  the  rate  or  amount  of  his  compensation.  His  charges 
must  therefore  be  reasonable,  and  he  must  not  unjustly  discriminate 
against  others,  and  in  determining  what  would  amount  to  unjust  dis- 
crimination all  the  facts  and  circumstances  must  be  taken  into  con- 
sideration. This  raises  a  question  of  fact,  which  must  ordinarily  be 
determined  by  the  trial  court.  The  question  as  to  whether  there 
was  unjust  discrimination  embraced  in  the  provisions  of  the  contract 
does  not  appear  to  have  been  determined  by  the  referee,  for  no  find- 
ing of  fact  appears  upon  that  subject.  Neither  does  it  appear  that 
he  was  requested  to  find  upon  that  question,  and  consequently  there  is 
no  exception  to  the  refusal  to  find  thereon.  Unless,  therefore,  we  can 
determine  the  question  as  one  of  law,  there  is  nothing  upon  this  sub- 
ject presented  for  review  in  this  court.  Is  the  provision  of  the  con- 
tract, therefore,  providing  for  a  rebate  of  15  cents  per  ton  from  the 
regular  tariff  rates,  an  unjust  discrimination  as  a  matter  of  law? 
Had  this  provision  stood  alone,  unqualified  by  other  provisions,  with- 
out the  circumstances  under  which  it  was  executed  explaining  the 
necessity  therefor,  we  should  be  inclined  to  the  opinion  that  it  did 
provide  for  an  unjust  discrimination ;  but,  upon  referring  to  the  con- 
tract, we  see  that  the  rebate  was  agreed  to  be  paid  in  consideration 
for  the  dock  and  coal  pocket  which  was  to  be  constructed  upon  the 
defendant's  premises  at  an  expense  of  ^17,000,  in  part  for  the  use  and 
convenience  of  the  defendant.  Quintard  was  to  load  all  the  cars  with 
the  coal  that  was  to  be  transported.  It  was  understood  that  a  large 
quantity  of  coal  was  to  be  shipped  over  defendant's  line,  thus  increas- 
ing the  business  and  income  of  the  company.  The  facilities  which 
Quintard  was  to  provide  for  the  loading  of  the  coal,  his  services  in 
loading  the  cars,  the  large  quantities  which  he  was  to  ship,  in  con- 
nection with  the  large  sums  of  money  that  he  had  expended  in  the 
erection  of  the  dock,  in  part  for  the  use  and  accommodation  of  the 
defendant,  are  facts  which  tend  to  explain  the  provision  of  the  con- 
tract complained  of,  and  render  it  a  question  of  fact  for  the  determi- 
nation of  the  trial  court  as  to  whether  or  not  the  rebate,  under  the 
circumstances  of  this  case,  amounted  to  an  unjust  discrimination, 
to  the  injury  and  prejudice  of  others.  Therefore,  in  this  case,  the 
question  is  one  of  fact,  and  not  of  law;  and,  inasmuch  as  the  discrim- 
ination has  not  been  found  to  be  unjust  or  unreasonable,  the  judgment 
cannot  be  disturbed. 

The  judgment  should  be  aflSrmed  with  costs. 

All  concur. 

Judgment  affirmed* 


LOUGH  V.   OUTERBRIDGE.  511 


LOUGH  V.    OUTERBRIDGE. 
CouBT  OP  Appeals  of  New  York,  1894. 

[143  N.  y.  271  ;  38  N.  E.  292.] 

O'Brien,  J.  The  question  presented  by  this  appeal  is  one  of  very 
great  importance.  It  touches  commerce,  and,  more  especially,  the 
duties  and  obligations  of  common  carriers  to  the  public  at  many 
points.  There  was  no  dispute  at  the  trial,  and  there  is  none  now, 
with  respect  to  the  facts  upon  which  it  arises.  In  order  to  present  the 
question  clearly,  a  brief  statement  of  these  facts  becomes  necessary. 
The  plaintiffs  are  the  surviving  members  of  a  firm  that,  for  many 
years  prior  to  the  transaction  upon  which  the  action  was  based,  had 
been  engaged  in  business  as  commission  merchants  in  the  city  of 
New  York,  transacting  their  business  mainly  with  the  Windward  and 
Leeward  Islands.  The  defendant,  the  Quebec  Steamship  Company, 
is  a  Canadian  corporation,  organized  and  existing  under  the  laws  of 
Canada ;  and  the  other  defendants  are  the  agents  of  the  corporation 
in  New  York,  doing  business  as  partners.  The  business  of  the  cor- 
poration is  that  of  a  common  carrier,  transporting  passengers  and 
freight  for  hire  upon  the  sea  and  adjacent  waters.  For  nearly  20 
years  prior  to  the  transaction  in  question,  a  part  of  its  business  was 
the  transportation  of  cargoes  between  New  York  and  the  Barbadoes 
and  the  Windward  Islands,  the  other  defendants  acting  as  agents  in 
respect  to  this  business.  During  some  years  prior  to  the  commence- 
ment of  this  action,  the  company  had  in  its  service  a  fleet  of  five  or 
six  of  the  highest  class  iron  steamers,  sailing  at  intervals  of  about  ten 
days  from  New  York  to  the  islands,  each  steamer  requiring  about  six 
weeks  to  make  the  trip.  The  steamers  were  kept  constantly  engaged 
in  this  service  and  sailed  regularly  upon  schedule  days  without  refer- 
ence to  the  amount  of  cargo  then  received.  The  regular  and  standard 
rate  charged  for  freight  up  to  December,  1891,  from  New  York  to 
Barbadoes,  one  of  the  Windward  Islands,  was  50  cents  per  dry  barrel 
of  five  cubic  feet,  which  was  taken  as  the  unit  of  measurement,  and 
the  tariff  of  charges  was  adjusted  accordingly  for  goods  shipped  in 
other  forms  and  packages.  In  December,  1891,  the  regular  rate  was 
reduced  from  50  to  40  cents  per  dry  barrel.  About  this  time  the 
British  steamer  El  Callao,  which  had  for  some  years  before  sailed 
between  New  York  and  Ciudad  Bolivar,  in  South  America,  trans- 
porting passengers  and  freight  between  these  points,  began  to  take 
cargo  at  New  York  for  Barbadoes,  and  sometimes  to  other  points  in 
the  Windward  Islands  which  she  passed  on  her  regular  trips  to  Ciudad 
Bolivar,  sailing  from  New  York  at  intervals  of  five  or  six  weeks. 
Her  trade  with  South  America  was  the  principal  feature  of  her  busi- 
ness, but  such  space  as  was  not  required  for  the  cargo  destined  for 
the  end  of  the  route  was  filled  with  cargo  for  the  islands  which  lay 


515  LOtJGH  V.   OUTERBRIDGE. 

in  her  regular  course.     The  defendants  evidently  regarded  this  vessel 
as  a  somewhat  dangerous  competitor  for  a  part  of  the  business,  the 
benefits  of  which  they  had  up  to  this  time  enjoyed ;  and,  for  the  pur- 
pose of  retaining  it,  they  adopted  the  plan  of  offering  special  reduced 
rates  of  25  cents  per  dry  barrel  to  all  merchants  and  business  men  in 
New  York  who  would  agree  to  ship  by  their  line  exclusively  during 
the  week  that  the  El  Callao  was  engaged  in  obtaining  freight  and 
taking  on  cargo.     The  plaintiffs'  firm  had  business  arrangements  with 
and  were  shipping  by  that  vessel;  and  in  February,  1892,  they  de- 
manded of  the  defendants  that  they  receive  3,000  barrels  of  freight 
from  New  York  to  Barbadoes,  and  transport  the  same  at  the  special 
rate  of  25  cents  per  barrel  upon  one  of  its  steamers.     The  defendants 
then  informed  the  plaintiffs  that  the  rate  of  25  cents  was  allowed  by 
them  only  to  such  shippers  as  stipulated  to  give  all  their  business 
exclusively  to  the  defendants'  line,  in  preference  to  the  El  Callao,  and 
that  to  all  other  shippers  the  standard  rate  of  40  cents  per  dry  barrel 
was  maintained ;  but  they  further  informed  the  plaintiffs  that,  if  they 
would  agree  to  give  their  shipments  for  that  week  exclusively  to  the 
defendants*  line,  the  goods  would  be  received  at  the  25  cents  rate. 
The  plaintiffs,  however,  were  shipping  by  the  other  vessel,  and  de- 
clined this  offer.     Again,  in  the  month  of  May,  1892,  the  El  Callao 
was  in  the  port  of  New  York  taking  on  cargo,  as  was  also  the  de- 
fendants' steamer  Trinidad.     The  plaintiffs  then  demanded  of  the 
defendants  that  they  receive  and  carry  from  New  York  to  Barbadoes 
about  1,760  dry  barrels  of  freight  at  the  rate  of  25  cents.     The  de- 
fendants notified  the  plaintiffs  that  a  general  offer  had  that  day  been 
made  by  them  to  the  trade  to  take  cargo  for  Barbadoes  on  the  Trini- 
dad, to  sail  on  June  4th,  at  25  cents  per  dry  barrel,  under  an  agree- 
ment that  shippei-s  accepting  that  rate  should  bind  themselves  not  to 
ship  to  that  point  by  steamers  of  any  other  line  between  that  date 
and  the  sailing  of  the  Trinidad.     The  defendants  offered  these  terms 
to  the  plaintiffs,  but,  as  they  were  shipping  by  the  rival  vessel,  the 
offer  was  declined.     Except  during  the  week  when  the  El  Callao  was 
engaged  in  taking  on  cargo,  the   defendants  have  maintained   the 
regular  rate  of  40  cents  to  all  shippers  between  these  points;  and, 
when  it  reduced  the  rate  as  above  described,  exactly  the  same  rates, 
terms,  and   conditions  were   offered   to    all   shippers,  including  the 
plaintiffs,  and  carried  freight  for  other  parties  at  the  reduced  rates 
only  upon  their  entering  into  a  stipulation  not  to  ship  by  the  rival 
vessel.     After  the  plaintiffs'  demand  last  mentioned  had  been  refused, 
they  obtained   an  order  from  one  of  the  judges  of  the  court  in  this 
action  requiring  the  defendants  to  carry  the  1,760  barrels,  and  the 
defendants  did  receive  and  transport  them,  in  obedience  to  the  order, 
at  the  rate  of  25  cents;  but  this  order  was  reversed  at  general  term. 
The  plaintiffs  demand  equitable  relief  in  the   action    to   the   effect, 
substantially,  that  the  defendants  be  required  and  compelled  by  the 
judgment  of  the  court  to  receive  and  transport  for  the  plaintiffs  their 


LOUGH  V.   OUTERBRIDGE.  513 

freight  at  the  special  reduced  rates,  when  allowed  to  all  other  ship- 
pers, without  imposing  the  condition  that  the  plaintiffs  stipulate  to 
ship  during  the  times  specified  by  the  defendants'  line  exclusively. 

Whether  the  regular  rate  of  40  cents,  for  which  it  is  conceded  that 
the  defendants  offered  to  carry  for  the  plaintiffs  at  all  times  without 
conditions,  was  or  was  not  reasonable,  was  a  question  of  fact  to  be 
determined  upon  the  evidence  at  the  trial ;  and  the  learned  trial  judge 
has  found  as  matter  of  fact  that  it  was  reasonable,  and  that  the  re- 
duced rate  of  25  cents  granted  to  shippers  on  special  occasions,  and 
upon  the  conditions  and  requirements  mentioned,  was  not  profitable. 
This  finding,  which  stands  unquestioned  upon  the  record,  seems  to 
me  to  be  an  element  of  great  importance  in  the  case,  which  must  be 
recognized  at  every  stage  of  the  investigation.  A  common  carrier  is 
subject  to  an  action  at  law  for  damages  in  case  of  refusal  to  perform 
its  duties  to  the  public  for  a  reasonable  compensation,  or  to  recover 
back  the  money  paid  when  the  charge  is  excessive.  This  right  to 
maintain  an  action  at  law  upon  the  facts  alleged,  it  is  urged  by  the 
learned  counsel  for  the  defendants,  precludes  the  plaintiffs  from  main- 
taining a  suit  for  equitable  relief  such  as  is  demanded  in  the  com- 
plaint. There  is  authority  in  other  jurisdictions  to  sustain  the 
practice  adopted  by  the  plaintiffs  (Watson  v.  Sutherland,  5  Wall.  74; 
Menacho  v.  Ward,  27  Fed.  529;  Toledo,  A.  A.  &  N.  M.  Ry.  Co.  v. 
Pennsylvania  Co.,  54  Fed.  741;  Coe  &  Milsom  v.  Railroad  Co.,  3 
Fed.  775;  Vincent  v.  Railroad  Co.,  49  111.  33;  Scofield  v.  Railroad 
Co.,  43  Ohio  St.  571),  though  I  am  not  aware  of  any  in  this  State  that 
would  bring  a  case  based  upon  such  facts  within  the  usual  or  ordinary 
jurisdiction  of  equity.  So  far  as  this  case  is  concerned,  it  is  sufficient 
to  observe  that  it  is  now  settled  by  a  very  general  concurrence  of 
authority  that  a  defendant  cannot,  when  sued  in  equity,  avail  himself 
of  the  defence  that  an  adequate  remedy  at  law  exists,  unless  he  pleads 
that  defence  in  his  answer.  Cogswell  v.  Railroad  Co.,  105  N.  Y. 
319;  Town  of  Mentz  v.  Cook,  108  N.  Y.  504;  Ostrander  ?;.  Weber, 
114  N.  Y.  95;  Dudley  v.  Congregation,  138  N.  Y.  460;  Truscott  v. 
King,  6  N.  Y.  147. 

When  the  facts  alleged  are  sufficient  to  entitle  the  plaintiff  to  relief 
in  some  form  of  action,  and  no  objection  has  been  made  by  the  de- 
fendant to  the  form  of  the  action  in  his  answer  or  at  the  trial,  it  is 
too  late  to  raise  the  point  after  judgment  or  upon  appeal.  So  that, 
whatever  objections  might  have  been  urged  originally  against  the 
action  in  its  present  form,  the  defendants  must  now  be  deemed  to  have 
waived  them.  This  court  will  not  now  stop  to  examine  a  minor 
question  that  does  not  touch  the  merits,  but  relates  wholly  to  the  form 
in  which  the  plaintiffs  have  presented  the  facts  and  demanded  relief, 
or  to  the  practice  and  procedure.  The  time  and  place  to  raise  and 
discuss  these  questions  was  at  or  before  the  trial,  and,  as  they  wer*i 
not  then  raised,  the  case  must  be  examined  and  disposed  of  upon  the 
merits.     The  defendants  were  engaged  in  a  business  in  which  the 

33 


514  LOUGH  V.   OUTERBRIDGE. 

public  were  interested,  and  the  duties  and  obligations  growing  out 
of  it  may  be  enforced  through  the  courts  and  the  legislative  power. 
Munn  V.  Illinois,  94  U.  S.  113;  People  v.  Budd,  117  N.  Y.  1.  In 
England  these  duties  are,  to  a  great  extent,  regulated  by  the  railway 
and  canal  traffic  act  (17  &  18  Vict.,  c.  31),  and  by  statute  in  some  of 
the  States,  and  in  this  country,  so  far  as  they  enter  into  the  business 
of  interstate  commerce,  by  act  of  Congress.  The  solution  of  the  ques- 
tion now  presented  depends  upon  the  general  principles  of  the  common 
law,  as  there  is  no  statute  in  this  State  that  affects  the  question,  and 
the  legislation  referred  to  is  important  only  for  the  purpose  of  in- 
dicating the  extent  to  which  business  of  this  character  has  been  sub- 
jected to  public  regulation  for  the  general  good.  There  can  be  no 
doubt  that  at  common  law  a  common  carrier  undertook  generally,  and 
not  as  a  casual  occupation,  to  convey  and  deliver  goods  for  a  reason- 
able compensation  as  a  business,  with  or  without  a  special  agreement, 
and  for  all  people  indifferently;  and,  in  the  absence  of  a  special 
agreement,  he  was  bound  to  treat  all  alike  in  the  sense  that  he  was 
not  permitted  to  charge  any  one  an  excessive  price  for  the  services. 
He  has  no  right  in  any  case  while  engaged  in  this  public  employment 
to  exact  from  any  one  anything  beyond  what  under  the  circum- 
stances is  reasonable  and  just.  2  Kent,  Comm.  (13th  ed.)  598;  Story, 
Bailm.  §§  495,  508;  2  Pars.  Cont.  175;  Killmer  v.  Railroad  Co.,  100 
N.  Y.  395;  Root  v.  Railroad  Co.  114  N.  Y.  300.  It  may  also  be  con- 
ceded that  the  carrier  cannot  unreasonably  or  unjustly  discriminate 
in  favor  of  one  or  against  another  where  the  circumstances  and 
conditions  are  the  same.  The  question  in  this  case  is  whether  the 
defendants,  upon  the  undisputed  facts  contained  in  the  record,  have 
discharged  these  obligations  to  the  plaintiffs.  There  was  no  refusal 
to  carry  for  a  reasonable  compensation.  On  the  contrary,  the  defend- 
ants offered  to  transport  the  goods  for  the  40  cents  rate,  and  we  are 
concluded  by  the  finding  as  to  the  reasonable  nature  of  that  charge. 
The  defendants  even  offered  to  carry  them  at  the  unprofitable  rate  of 
25  cents,  providing  the  plaintiffs  would  comply  with  the  same  condi- 
tions upon  which  the  goods  of  any  other  person  were  carried  at  that 
rate.  What  is  reasonable  and  just  in  a  common  carrier  in  a  given 
case  is  a  complex  question,  into  which  enter  many  elements  for  con- 
sideration. The  questions  of  time,  place,  distance,  facilities,  quan- 
tity, and  character  of  the  goods,  and  many  other  matters  must  be 
considered.  The  carrier  can  afford  to  carry  10,000  tons  of  coal  and 
other  property  to  a  given  place  for  less  compensation  per  ton  than 
he  could  carry  50;  and,  where  the  business  is  of  great  magnitude,  a 
rebate  from  the  standard  rate  might  be  just  and  reasonable,  while  it 
could  not  fairly  be  granted  to  another  who  desired  to  have  a  trifling 
amount  of  goods  carried  to  the  same  point.  So  long  as  the  regular 
standard  rates  maintained  by  the  carrier  and  offered  to  all  are  reason- 
able, one  shipper  cannot  complain  because  his  neighbor,  by  reason  of 
special  circumstances  and  conditions,  can  make  it  an  object  for  the 


LOUGH  V.   OUTERBEIDGE.  515 

carrier  to  give  him  reduced  rates.  In  this  case  the  finding  implies 
that  the  defendants  at  certain  times  carried  goods  at  a  loss,  upon  the 
condition  that  the  shippers  gave  them  all  of  their  business.  What- 
ever eiiect  may  be  given  to  the  legislation  referred  to,  in  its  applica- 
tion to  railroads  and  other  corporations  deriving  their  powers  and 
franchises  from  the  State,  there  can  be  no  doubt  that  the  carrier  could 
at  common  law  make  a  discount  from  its  reasonable  general  rates  in 
favor  of  a  particular  customer  or  class  of  customers  in  isolated 
cases,  for  special  reasons,  and  upon  special  conditions,  without 
violating  any  of  the  duties  or  obligations  to  the  public  inherent  in 
the  employment.  If  the  general  rates  are  reasonable,  a  deviation 
from  the  standard  by  the  carrier  in  favor  of  particular  customers,  for 
special  reasons  not  applicable  to  the  whole  public,  does  not  furnish  to 
parties  not  similarly  situated  any  just  ground  for  complaint.  When 
the  conditions  and  circumstances  are  identical,  the  charges  to  all 
shippers  for  the  same  service  must  be  equal.  These  principles  are 
well  settled,  and  whatever  may  be  found  to  the  contrary  in  the  cases 
cited  by  the  learned  counsel  for  the  plaintiff  originated  in  the  appli- 
cation of  statutory  regulations  in  other  States  and  countries.  Rail, 
road  Co.  v.  Gage,  12  Gray,  393;  Sargent  v.  Railroad  Co.,  115  Mass. 
422;  Steamship  Co.  v.  McGregor,  21  Q.  B.  Div.  544,  affirmed  23 
Q.  B.  Div.  598,  and  by  H.  L.  17  App.  Cas.  25;  Evershed  v.  Railway 
Co.,  3  Q.  B.  Div.  135;  Baxendale  v.  Railroad  Co.,  4  C.  B.  (N.  S.) 
78;  Branley  v.  Railroad  Co.,  12  C.  B.  (N.  S.)  74. 

Special  favors  in  the  form  of  reduced  rates  to  particular  customers 
may  form  an  element  in  the  inquiry  whether,  as  matter  of  fact,  the 
standard  rates  are  reasonable  or  otherwise.  If  they  are  extended  to 
such  persons  at  the  expense  of  the  general  public,  the  fact  must  be 
taken  into  account  in  ascertaining  whether  a  given  tariff  of  general 
prices  is  or  is  not  reasonable.  But,  as  in  this  case  the  reasonable 
nature  of  the  price  for  which  the  defendants  offered  to  carry  the 
plaintiffs'  goods  has  been  settled  by  the  findings  of  the  trial  court, 
it  will  not  be  profitable  to  consider  further  the  propriety  or  effect  of 
such  discrimination.  The  rule  of  the  common  law  was  thus  broadly 
stated  by  the  Supreme  Court  of  Massachusetts  in  the  case  of  Railroad 
Co.  V.  Gage,  supra.  Upon  that  point  the  court  said:  "The  recent 
English  cases,  cited  by  the  counsel  for  the  defendants,  are  chiefly 
commentaries  upon  the  special  legislation  of  Parliament  regulating 
the  transportation  of  freight  on  railroads  constructed  under  the 
authority  of  the  government  there,  and  consequently  throw  very  little 
light  upon  questions  concerning  the  genei-al  rights  and  duties  of  com- 
mon carriers,  and  are  for  that  reason  not  to  be  regarded  as  author- 
itative expositions  of  the  common  law  upon  these  subjects.  The 
principle  derived  from  that  source  is  very  simple.  It  requires  equal 
justice  to  all.  But  the  equality  which  is  to  be  observed  consists  in 
the  restricted  right  to  charge  a  reasonable  compensation,  and  no 
more.     If  the  carrier  confines  himself  to  this,  no  wrong  can  be  done. 


516  LOUGH    V.   OUTERBRIDGE. 

If,  for  special  reasons  in  isolated  cases,  the  carrier  sees  ft  to  stipu< 
/ate  for  the  carriage  of  goods  of  any  class  for  individuals,  for  a 
certain  time,  or  in  certain  quantities,  for  a  less  compensation  than 
what  is  the  usual,  necessary,  and  reasonable  rate,  he  may  undoubt- 
edly do  so  without  entitling  all  parties  to  the  same  advantage."  In 
Evershed  v.  Railway  Co.,  supra^  Lord  Bramwell  remarked:  "I  am 
not  going  to  lay  down  a  precise  rule,  but,  speaking  generally,  and 
subject  to  qualification,  it  is  open  to  a  railway  company  to  make  a 
bargain  with  a  person,  provided  they  are  willing  to  make  the  same 
bargain  with  any  other,  though  that  other  may  not  be  in  a  situation 
to  make  it.  An  obvious  illustration  may  be  found  in  season  tickets." 
The  authorities  cited  seem  to  me  to  remove  all  doubt  as  to  the  right 
of  a  carrier,  by  special  agreement,  to  give  reduced  rates  to  customers 
who  stipulate  to  give  them  all  their  business,  and  to  refuse  these  rates 
to  others  who  are  not  able  or  willing  to  so  stipulate,  providing, 
always,  that  the  charge  exacted  from  such  parties  for  the  service  is 
not  excessive  or  unreasonable.  The  principle  of  equality  to  all,  so 
earnestly  contended  for  by  the  learned  counsel  for  the  plaintiffs,  was 
not,  thei'efore,  violated  by  the  defendants,  since  they  were  willing  and 
offered  to  carry  the  plaintiffs'  goods  at  the  reduced  rate,  upon  the 
same  terms  and  conditions  that  these  rates  were  granted  to  others; 
and,  if  the  plaintiffs  were  unable  to  get  the  benefit  of  such  rate,  it 
was  because,  for  some  reason,  they  were  unable  or  unwilling  to  comply 
with  the  conditions  upon  which  it  was  given  to  their  neighbors,  and 
not  because  the  carrier  disregarded  his  duties  or  obligations  to  the 
public.  The  case  of  Menacho  v.  Ward,  27  Fed.  529,  does  not  apply, 
because  the  facts  were  radically  different.  That  action  was  to  restrain 
the  carrier  from  exacting  unreasonable  charges  habitually  for  ser- 
vices, the  charges  having  been  advanced  as  to  the  parties  complaining, 
for  the  reason  that  they  had  at  times  employed  another  line.  It  de- 
cides nothing  contrary  to  the  general  views  here  stated.  On  the  con- 
trary, the  court  expressly  recognized  the  general  rule  of  the  common 
law  with  respect  to  the  obligations  and  duties  of  the  carrier  substan- 
tially as  it  is  herein  expressed,  as  will  be  seen  from  the  following 
paragraph  in  the  opinion  of  Judge  "Wallace:  "Unquestionably,  a 
common  carrier  is  always  entitled  to  a  reasonable  compensation  for 
his  services.  Hence  it  follows  that  he  is  not  required  to  treat  all 
those  who  patronize  him  with  absolute  equality.  It  is  his  privilege  to 
charge  less  than  a  fair  compensation  to  one  person,  or  to  a  class  of 
persons,  and  others  cannot  justly  complain  so  long  as  he  carries  on 
reasonable  terms  for  them.  Respecting  preference  in  rates  of  com- 
pensation, his  obligation  is  to  charge  no  more  than  a  fair  return  in 
each  particular  transaction,  and,  except  as  thus  restricted,  he  is  free 
to  discriminate  at  pleasure.  This  is  the  equal  justice  to  all  which 
the  law  exacts  from  the  common  carrier  in  his  relations  with  the 
public." 
But  it  is  urged  that  the  plaintiffs  were  in  fact  the  only  shippers  of 


LOUGH   V.   OUTERBRIDGE.  617 

goods  from  New  York  to  Barbadoes  by  the  El  Callao,  and  therefore 
the  condition  imposed  that  the  reduced  rate  should  be  granted  only 
to  such  merchants  as  stipulated  to  give  the  defendants  their  entire 
business,  while  in  terms  imposed  upon  the  public  generally,  was  in 
fact  aimed  at  the  plaintiffs  alone.  The  trial  court  refused  to  find  this 
fact,  but,  assuming  that  it  appeared  from  the  undisputed  evidence, 
I  am  unable  to  see  how  it  could  affect  the  result.  The  significance 
which  the  learned  counsel  for  the  plaintiffs  seems  to  give  to  it  in  his 
argument  is  that  it  conclusively  shows  the  purpose  of  the  defendants 
to  compel  the  plaintiffs  to  withdraw  their  patronage  from  the  other 
line,  to  suppress  competition  in  the  business,  and  to  retain  a  monopoly 
for  their  own  benefit.  Conceding  that  such  was  the  purpose,  it  is  not 
apparent  how  any  obligation  that  the  defendants  owed  to  the  public 
was  disregarded.  We  have  seen  that  the  defendants  might  lawfully 
give  reduced  rates  in  special  cases,  and  refuse  them  in  others,  where 
the  conditions  are  different,  or  to  the  general  public,  where  the  regular 
rates  are  reasonable.  The  purpose  of  an  act  which  in  itself  is  per- 
fectly lawful,  or,  under  all  the  circumstances,  reasonable,  is  seldom, 
if  ever,  material.  Phelps  v.  Nowlen,  72  N.  Y.  39 ;  Kiff  v.  Youmans, 
86  N.  Y.  324.  The  mere  fact  that  the  transportation  business  be- 
tween the  two  points  in  question  was  in  the  hands  of  the  defendants 
did  not  necessarily  create  a  monopoly,  if  the  general  rates  maintained 
were  reasonable  and  just.  It  is  not  pretended  that  the  owners  of  the 
El  Callao  proposed  to  give  regular  service  to  the  general  public  for 
any  less.  When  the  service  is  performed  for  a  reasonable  and  just 
hire,  the  public  have  no  interest  in  the  question  whether  one  or  many 
are  engaged  in  it.  The  monopoly  which  the  law  views  with  disfavor 
is  the  manipulation  of  a  business  in  which  the  public  are  interested 
in  such  a  way  as  to  enable  one  or  a  few  to  control  and  regulate  it  in 
their  own  interest,  and  to  the  detriment  of  the  public,  by  exacting 
unreasonable  charges.  But  when  an  individual  or  a  corporation  has 
established  a  business  of  a  special  and  limited  character,  such  as  the 
defendants  in  this  case  had,  they  have  a  right  to  retain  it  by  the  use 
of  all  lawful  means.  That  was  what  the  defendants  attempted  to  do 
against  a  competitor  that  engaged  in  it,  not  regularly  or  permanently, 
but  incidentally  and  occasionally.  The  means  adopted  for  this  pur- 
pose was  to  offer  the  service  to  the  public  at  a  loss  to  themselves 
whenever  the  competition  was  to  be  met,  and,  when  it  disappeared,  to 
resume  the  standard  rates,  which,  upon  the  record,  did  not  at  any  time 
exceed  a  reasonable  and  fair  charge.  I  cannot  perceive  anything 
unlawful  or  against  the  public  good  in  seeking  by  such  means  to  retain 
a  business  which  it  does  not  appear  was  of  sufficient  magnitude  to 
furnish  employment  for  both  lines.  On  this  branch  of  the  argument 
the  remarks  of  Lord  Coleridge  in  the  case  of  Steamship  Co.  v, 
McGregor,  supra,  are  applicable:  "The  defendants  are  traders,  with 
enormous  sums  of  money  embarked  in  their  adventure,  and  naturally 
and  allowably  desire  to  reap  a  profit  from  their  trade.     They  have  a 


518        UNITED   STATES   V.   CHICAGO   AND   ALTON   RY.   COMPANY. 

right  to  push  their  lawful  trades  by  all  lawful  means.  They  have  a 
right  to  endeavor,  by  lawful  means,  to  keep  their  trade  in  their  own 
hands,  and  by  the  same  means  to  exclude  others  from  its  benefits,  if 
they  can.  Amongst  lawful  means  is  certainly  included  the  inducing, 
by  profitable  offers,  customers  to  deal  with  them,  rather  than  with 
their  rivals.  It  follows  that  they  may,  if  they  see  fit,  endeavor  to  in- 
duce customers  to  deal  with  them  exclusively  by  giving  notice  that 
only  to  exclusive  customers  will  they  give  the  advantage  of  their 
profitable  offers.  I  do  not  think  it  matters  that  the  withdrawal  of  the 
advantages  is  out  of  all  proportion  to  the  injury  inflicted  by  those 
who  withdraw  them  on  the  customers  who  decline  to  deal  exclusively 
with  them  dealing  with  other  traders."  The  courts,  I  admit,  should 
do  nothing  to  lessen  or  weaken  the  restraints  which  the  law  imposes 
upon  the  carrier,  or  in  any  degree  to  impair  his  obligation  to  serve  all 
persons  indifferently  in  his  calling,  in  the  absence  of  a  reasonable 
excuse,  and  for  a  reasonable  compensation  only ;  but  to  hold,  as  we 
are  asked  to  in  this  case,  that  the  plaintiffs  were  entitled  to  have  their 
goods  carried  by  the  defendants  at  an  unprofitable  rate,  without  com- 
pliance with  the  conditions  upon  which  it  was  granted  to  all  others, 
and  which  constituted  the  motive  and  inducement  for  the  offer,  would 
be  extending  these  obligations  beyond  the  scope  of  any  established 
precedent  based  upon  the  doctrine  of  the  common  law,  and  would,  I 
think,  be  contrary  to  reason  and  justice. 

The  judgment  of   the  court  below  dismissing  the  complaint  was 
right,  and  should  be  aflSrmed,  with  costs. 

Finch,  Gray,  and  Bartlett,  JJ.,  concur.     Peckham,  J.,  dissents. 

Andrews,  C.  J.,  not  sitting.         > 

Judgment  affii'med. 


UNITED   STATES  v.  CHICAGO   &  ALTON  RAILWAY 
COMPANY. 

District  Court  of  the  United  States,  1906. 

[148  Fed.  646.] 

Landis,  D.  J.  In  this  proceeding  the  Chicago  &  Alton  Railway  Com- 
pany and  its  vice-president  and  general  freight  agent  are  charged  with 
violating  the  interstate  commerce  law  by  granting  rebates.  The  gov- 
ernment having  closed  its  case,  the  defendants  move  for  an  order  direct- 
ing the  jury  to  return  a  verdict  of  not  guilty. 

The  material  facts  are  as  follows :  The  Chicago  &  Alton  Company  is 
an  interstate  carrier,  operating  a  railroad  from  Kansas  Cit}-,  Mo.,  to 
points  cast ;  the  Belt  Railway  Company  is  an  interstate  carrier  oper- 
ating the  belt  line  connecting  Kansas  City,  Kan.,  and  Kansas  City, 
Mo. ;  the  Schwarzschild  &  Sulzberger  Company  is  a  corporation  en- 


UNITED   STATES   V.   CHICAGO   AND   ALTON   RY.   COMPANY.        519 

gaged  in  the  beef-packing  business  at  Kansas  City,  Kan. ;  the  track  of 
the  Alton  Company  connects  with  the  Belt  track  at  Kansas  City,  Mo. ; 
and  the  Belt  track  connects  with  the  private  track  of  Schwarzschild  «fe 
Sulzberger,  laid  and  maintained  by  that  corporation  on  its  own  prop- 
erty at  Kansas  City,  Kan.,  occupied  also  by  its  packing  plant.  As 
required  by  the  interstate  commerce  law  the  Alton  Company  and  the 
Belt  Company  published  and  filed  tariflf  schedules  announcing  to  the  ship- 
ping public  what  their  charges  would  be  for  the  transportation  of  pack- 
ing-house products.  The  Belt  tariff  was  $3.00  per  car  from  the  packing 
company's  track  to  the  Alton  connection.  The  Alton  schedule  stated 
that  its  rate  included  the  Belt  Company's  charge,  so  that,  in  substance, 
it  was  as  if  the  Alton  road  itself  connected  with  the  packing  company's 
track.  The  Alton  Company  collected  from  the  Schwarzschild  &  Sulz- 
berger Company  the  amount  of  its  freight  charge  as  per  the  published 
schedules,  remitted  to  the  Belt  its  $3  switching  charge,  and  thereafter 
paid  to  Scwharzschild  &  Sulzberger  $1  on  each  car  of  the  Schwarzschild 
&  Sulzberger  product  so  handled.  This  practice  has  obtained  since 
1901.  Prior  to  that  time  the  Alton  Company's  tariff  likewise  included 
the  Belt  charge,  which  was  then  04  per  car.  On  collecting  the  full 
tariff  from  the  Schwarzschild  &  Sulzberger  Company,  the  Alton  road 
paid  to  the  Belt  its  charge  of  $4  per  car,  whereupon  the  Belt  gave  to 
the  packing  company  Si  on  each  loaded  car  handled.  It  was  at  the 
request  of  Schwarzschild  &  Sulzberger  (for  some  reason  which  does  not 
appear)  that  for  this  arrangement  was  substituted  the  plan  evidenced 
in  the  pending  cause,  whereby  the  railway  company  made  payment 
direct  to  the  shipper  (some  five  months  after  the  freight  went  forward), 
instead  of  indirectly  through  the  medium  of  the  Belt  line. 

The  indictment  charges  that  the  payment  to  the  packing  company 
was  a  rebate.  The  defendants  contend  that  the  payment  was  made  by 
the  railway  company  for  its  use  of  the  packing  company's  private  track, 
connecting  its  shipping  dock  with  the  Belt  rails ;  and  it  is  urged  in 
behalf  of  defendants  that,  if  any  provision  of  the  law  has  been  vio- 
lated, it  is  only  that  section  requiring  the  carrier  to  publish  any  ter- 
minal charge  or  regulation  which  alters  or  determines  the  aggregate  rate 
for  the  transportation  of  property.  I  am  unable  to  see  the  force  of  this 
contention.  The  real  question  here  is  simply  this  :  "  Has  the  pa^'ment 
back  to  the  shipper  of  $1  per  car  out  of  the  money  paid  by  the  shipper 
to  the  railway  company  in  the  first  instance  resulted  in  the  shipper  get- 
ting its  property  transported  at  a  less  cost  to  it  than  that  specified  in 
the  published  schedules?" 

It  would  seem  that  to  state  this  question  is  to  answer  it.  The  word 
"rate,"  as  used  in  the  interstate  commerce  law,  means  the  net  cost  to 
the  shipper  of  the  transportation  of  his  property ;  that  is  to^ay,  the  net 
amount  the  carrier  receives  from  the  shipper  and  retains.  In  deter- 
mining this  net  amount  in  a  given  case,  all  money  transactions  of  every 
kind  or  character  having  a  bearing  on,  or  relation  to,  that  particular 
instance  of  transportation  whereby  the  cost  to  the  shipper  is  directly 


520        UNITED   STATES  V.   CHICAGO  AND  ALTON   RY.   COMPANY. 

or  indirectly  enhanced  or  reduced  must  be  taken  into  consideration. 
Applying  this  test  to  the  case  before  me,  the  net  cost  to  the  Schwarz- 
schild  &  Sulzberger  Compan}'  has  been  made  Si  per  car  less  than  the 
published  schedules  represented  that  net  cost  would  be.  Viewing  tlie 
transaction  from  the  standpoint  most  favorable  to  the  defendants,  it 
amounts  to  the  railway  company  assuming  the  cost  of  getting  the  ship- 
per's property  to  the  carrier's  rails  for  transportation  —  a  substantial 
consideration  not  mentioned  in,  or  contemplated  by,  the  published 
schedules.  With  equal  propriety  (its  schedules  being  silent  on  the  sub- 
ject) a  carrier  might,  for  the  purpose  of  inducing  the  routing  of  traffic 
via  its  line,  paj'  the  consignor's  and  consignee's  bills  for  the  cartage  of 
property  between  their  warehouses  and  the  railway  depots. 

The  object  of  the  statutes  relating  to  interstate  commerce  is  to  secure 
the  transportation  of  persons  and  property  by  common  carriers  for  rea- 
sonable compensation.  No  rate  can  possibly  be  reasonable  that  is 
higher  than  anybody  else  has  to  pay.  Recognizing  this  obvious  truth, 
the  law  requires  the  carrier  to  adhere  to  the  published  rate  as  an 
absolute  standard  of  uniformit}.  The  requirement  of  publication  is 
imposed  in  order  that  the  man  having  freight  to  ship  ma}'  ascertain  by 
an  inspection  of  the  schedules  exactly  what  will  be  the  cost  to  him  of 
the  transportation  of  his  property ;  and  not  only  so,  but  the  law  gives 
him  another  and  a  ver}*  valuable  right,  namely,  the  right  to  know,  by 
an  inspection  of  the  same  schedule,  exactly  what  will  be  the  cost  to  his 
competitor  of  the  transportation  of  his  competitor's  property. 

It  being  my  opinion  that,  when  the  Alton  Company  published  a  spe- 
ciflc  rate  covering  packing-house  products,  collected  that  rate  from  the 
Schwarzschild  &  Sulzberger  Packing  Compan}',  and  subsequently  gave 
back  part  of  that  rate  to  Schwarzschild  &,  Sulzberger,  a  device  was 
employed  by  means  of  which  the  packing  company's  property  was  trans- 
ported at  a  less  rate  than  that  named  in  the  published  schedules,  the 
defendants'  motion  will  be  overruled. 


DITTMAR  V.   NEW   BRAUNFELS.  621 

DITTMAR  V.  NEW  BRAUNFELS. 
Court  op  Civil  Appeals,  Texas,  1899. 

[20  Texas  Civil  Appeals,  293.] 

Fisher,  C.  J.  Appellant,  Dittmar,  brought  this  suit,  in  the  nature 
of  an  injunction,  to  restrain  the  city  of  New  Braunfels  from  interfering 
with  his  use  of  water  from  the  water  system  of  New  Braunfels  for 
domestic  purposes,  and  to  require  the  city  to  restore  him  to  his  rights 
as  a  consumer  of  water  under  a  contract  existing  between  him  and  the 
city,  and  to  connect  his  residence  with  the  water  mains  of  the  city, 
after  the  city  authorities  operating  the  waterworks,  without  his  con- 
sent, had  disconnected  his  residence  from  the  water  system,  and  cut 
off  his  supply  of  water.  There  is  also  a  claim  of  damages  claimed  to 
have  resulted  by  reason  of  the  wrongful  interference  of  the  city  with 
his  rights  in  the  use  of  water.  A  temporary  injunction  was  granted, 
but,  upon  final  hearing,  general  and  special  demurrers  were  addressed 
to  the  petition,  which  were  sustained,  and  the  case  dismissed,  from 
which  judgment  the  appellant  has  appealed. 

Without  stating  in  full  the  language  of  plaintiff's  petition,  the  cause 
of  action,  as  there  set  out,  is  substantially  as  follows :  The  city  of  New 
Braunfels  is  incorporated  under  the  general  laws  of  this  State,  and 
plaintiff  is  a  resident  and  taxpaj-er  thereof,  occupying,  with  his  famil}-, 
a  residence  within  the  limits  of  the  city.  The  city  has  in  operation, 
and  has  had  for  several  j-ears  past,  a  permanent  and  adequate  sys- 
tem of  waterworks,  which  is  carried  on  and  conducted  by  the  city 
for  the  purpose  of  supplying  the  inhabitants  water  for  public  and 
private  use.  There  is  an  abundant  supply  of  pure  and  wholesome 
water,  which  the  city,  by  the  exercise  of  reasonable  diligence  in  the 
operation  of  its  waterworks,  can  continuously  furnish  the  plaintiff  and 
the  other  inhabitants  of  the  city.  This  water  is  used  for  fire  protec- 
tion and  for  domestic  purposes  by  the  inhabitants,  and  there  is  not, 
within  the  city,  any  other  source  from  which  the  inhabitants  can  ob- 
tain a  sufficient  and  wholesome  supply  of  water.  In  November,  1895, 
the  appellant  entered  into  a  contract  with  the  city,  whereby  it  agreed 
to  furnish  him  water  at  his  residence,  for  household  purposes,  at  the 
rate  of  one  dollar  a  month,  payable  quarterly  in  advance.  In  pursu- 
ance of  that  contract,  at  considerable  expense  to  the  plaintiff,  the 
amount  of  which  is  set  out  in  the  petition,  the  plaintiff's  residence  was 
connected  with  the  water  system  operated  by  the  city,  and  he,  from 
that  time,  had  promptly  paid  the  water  rates  due  from  him,  and  has 
complied  with  all  reasonable  regulations  made  b}^  the  city  for  the  con- 
sumption and  use  of  water ;  and  if  an}'  water  rent,  upon  the  trial  of 
the  case,  was  found  to  be  due,  he  was  ready  and  willing  to  pay  the 
same,  and  had  tendered  to  the  defendant  all  amounts  due  it  for  the 
use  of  water.  In  pursuance  of  said  contract,  he  continued  to  use 
the  water  for  household  purposes,  at  his  residence,  until  May,  1898, 


522  DITTMAR  V.   NEW   BKAUNFELS. 

when  the  defendant,  through  its  servants  operating  the  water  system, 
wrongfull}-,  without  his  consent,  cut  off  the  supply  of  water  from  his 
residence ;  and  thereupon  he  demanded  of  the  defendant  that  he  be 
again  connected  with  the  water  system,  and  restored  to  his  rights  as 
a  consumer,  and  tendered  to  the  defendant  the  sum  of  $12,  all  of 
which  the  defendant  refused  to  do.  In  1897  the  city  passed  an  ordi- 
nance requiring  consumers  of  water  for  household  purposes  to  enter 
into  a  contract,  which  is  8t3led  in  the  petition  as  "Exhibit  A,"  as  fol- 
lows: "$12.00.  (Ord.  Sec.  26.)  New  Braunfels,  Texas,  1897.  The 
city  of  New  Braunfels  is  requested  to  connect  my  property  known  and 
described  as  lots  Nos.  9  and  10,  on  Academy  Street,  Jahn's  addition, 
in  ward  No.  4,  New  Braunfels,  Texas,  with  the  waterworks  S3stem  of 
said  cit}'.  The  water  is  wanted  and  applied  and  subscribed  for  under 
conditions,  and  for  the  purposes  and  uses,  following:  Household.  It 
is  especially  agreed  and  understood,  and  made  a  part  of  the  consider- 
ation of  this  contract,  that  the  city  of  New  Braunfels  is  in  no  manner 
to  be  held  liable  for  any  scarcit}'  or  failure  of  water,  nor  for  the  quality 
or  quantit}-  thereof,  nor  for  any  failure  to  supply  water  in  the  event  of 
fire  on  the  premises,  or  other  casualty'  or  happening.  This  order  is  given 
and  signed  freeh',  with  the  understanding  and  acquiescence  of  the  terms 
and  conditions  above,  and  with  the  knowledge  and  the  understand- 
ing that,  if  a  contract  is  desired  not  containing  such  a  waiver,  a  higher 
rate  would  be  demanded  by  the  city,  and  with  the  full  knowledge  and 
acquiescence  of  the  ordinance  of  the  said  city  exempting  it  from  lia- 
bility in  the  event  of  failure  or  scarcity  of  water,  either  for  fire  or 
domestic  purposes.  This  contract  is  continuous,  and  the  subscriber  is 
aware  of  the  condition  that,  should  he  desire  to  have  the  same  altered, 
abated,  or  cancelled,  notice  must  be  given  to  the  city  of  New  Braun- 
fels at  least  thirty  days  beforehand  ;  otherwise  this  contract  is  to  remain 
in  full  force.  But  nothing  herein  shall  be  construed  to  prevent  the  city 
from  cutting  off  the  suppl}'  without  notice  or  liability  for  damage  of  any 
kind,  in  the  event  the  rate  herein  called  for  and  specifled  is  not 
promptl}'  paid  wiien  due." 

And  at  the  same  time  the  city  passed  the  following  ordinances,  which 
are  known  as  sections  27  and  29  :  ^ 

"  Section  27.  Any  person,  corporation,  or  firm  desiring  a  contract 
or  form  differing  in  its  conditions  from  the  order  given  in  section  26 
hereof,  may,  by  application  in  writing  to  the  city  council  of  New  Braun- 
fels, Texas,  have  a  special  contract  granted  him  (or  it)  at  the  rate  to 
be  fixed  by  such  council,  upon  the  granting  of  such  application,  which 
rate  shall  not  be  less  than  double  the  amount  of  the  charges  in  the 
ordinances  set  out,  except  for  good  reasons  to  the  contrary,  shown  to 
the  city  council." 

"  Section  29.  No  connections  shall  be  made  nor  shall  any  water 
be  furnished  or  supplied,  unless  the  owner  of  the  property  to  be  so 
connected  or  supplied  make  his  application  therefor  in  writing  and 
form  following,  to  wit:     [Here  follows  the  form  Exhibit  A,  leaving 


DITTMAR   V.   NEW  BRAUNFELS.  523 

blank  the  name,  lot,  street,  &c.,  so  as  to  constitute  a  printed  blank 
form.] " 

This  ordinance,  as  stated  in  section  27,  was  intended  to  give  those 
inhabitants  the  right  to  a  supply  of  water  who  refused  to  sign  and  en- 
ter into  the  contract  set  out  in  Exhibit  A.  The  plaintiff  refused  to 
sign  the  contract  as  previously  set  out,  or  any  of  the  contracts  re- 
quired by  the  ordinance  as  stated  in  section  27,  and  for  this  reason, 
solely,  the  cit}-  disconnected  hira  from  the  water  sj'stem,  and  refused 
further  to  continue  furnishing  him  a  supply*  of  water  under  the  contract 
that  he  had  previously  entered  into  with  the  city  in  1895.  It  is  also 
averred  that  it  cost  the  citj'  no  more  to  furnish  plaintiff  a  supply  of 
water  for  household  purposes  than  it  does  other  inhabitants  of  the 
city  ;  that  it  is  furnishing  other  inhabitants  for  household  purposes  a 
supply  of  water  at  the  same  rate  that  it  agreed  to  furnish  the  plaintiff 
under  the  contract  of  1895.  In  other  words,  that  there  are  no  dis- 
similar conditions  existing  between  the  plaintiff  and  the  other  inhabi- 
tants with  reference  to  the  cost  and  expense  of  furnishing  water,  and 
that  the  cit}'  is  continuing  to  furnish  other  inhabitants  an  adequate  and 
wholesome  supply  of  water  for  household  purposes  at  the  rate  of  one 
dollar  per  month.  The  contention  of  the  appellant  is  that  the  contract 
as  stated  in  Exhibit  A,  and  the  ordinance  upon  which  it  is  based,  are 
unreasonable,  and  therefore  void,  and  that  for  his  refusal  to  enter  into 
a  contract  of  that  nature  the  city  arbitrarily,  and  without  legal  rea- 
son, cut  off  his  supph'  of  water  and  disconnected  him  from  the  system  ; 
that  his  rights  as  a  consumer  were  fixed  under  the  contract  that  he 
had  entered  into  in  1895,  which  could  not  be  disturbed,  except  for 
reasonable  rules  and  regulations,  which  it  is  not  questioned  the  city 
had  the  right  to  make,  regarding  the  use  and  consumption  of  water. 
This  court  has  previously  held  in  the  case  of  Lenzen  i\  Citj'  of  New 
Braunfels,  which  will  be  found  reported  in  35  S-  W.  341,  that  a  city 
who  by  contract  owes  a  duty  to  a  consumer  will  be  required  to  exer- 
cise ordinary  care  in  furnishing  and  supplying  him  with  the  use  of 
water.  And  the  averments  of  the  petition,  in  terms,  state  that  the 
purpose  of  passing  the  ordinances  which  are  here  assailed  was  to  evade 
the  decision  of  this  court  in  the  Lenzen  Case ;  and  the  averments  of 
the  petition,  together  with  the  terms  of  the  contract  as  set  out  in  Ex- 
hibit A,  impress  us  with  the  belief  that  such  was,  in  part,  the  purpose 
of  the  council  of  the  cit}'  in  passing  the  ordinances,  and  requiring 
consumers  to  enter  into  contracts  of  the  character  set  out  in  the 
exhibit. 

A  city  has  the  power  to  require  consumers  to  enter  into  contracts 
obligating  them  to  comply  with  the  reasonable  rules  and  regulations 
which  may  be  imposed  for  the  operation  and  protection  of  the  water 
system  and  for  the  use  of  the  water;  but,  as  a  prerequisite  to  fur- 
nishing a  consumer  a  supply  of  water,  the  city  has  no  power  to  require 
him  to  enter  into  an  agreement  absolving  the  city  from  the  duties  im- 
posed upon  it  by  the  law  and  release  it  from  liability  for  its  own  negli- 


524  DITTMAR  V.   NEW  BRAUNFELS. 

gence.  The  contract  in  question,  which  the  plaintiff  was  required  to 
sign,  releases  the  city  from  liability  for  any  scarcity  or  failure  of  sup- 
ply of  water,  or  for  the  quality  thereof,  or  for  any  failure  to  supply 
water  in  tlie  event  of  a  fire  or  other  casualty  or  happening,  and  it 
expressly  exempts  it  from  liabilit}-  for  failure  or  scarcity'  of  water  for 
fire  or  domestic  purposes.  It  is  averred  in  the  petition  that  the  sources 
from  which  the  cit}'  obtained  its  water  will  furnish  an  unlimited  supply 
of  a  wholesome  quality,  if  the  citj'  sliould  conduct  its  works  with  due 
care  with  reference  to  its  obligation  to  the  consumers.  This  contract, 
in  terms,  releases  the  city  from  its  obligation  to  furnish  water  of  good 
quality  and  sufficient  quantity,  and  for  a  failure  to  supply  water  in  the 
event  of  a  fire  on  the  premises  or  other  casualty  or  happening.  In 
other  words,  the  purpose  of  these  stipulations  in  this  contract  seems  to 
be  that,  for  any  failure  or  refusal  to  furnish  water  to  a  consumer,  eitlier 
with  reference  to  its  quality  or  quantity,  the  city  should  be  released 
from  liability.  We  are  clearly  of  the  opinion,  in  view  of  the  duty  that 
the  city  owes  to  its  consumers  of  water,  that  the  imposition  of  a  con- 
tract of  this  nature  would  be  unreasonable,  and  therefore  void.  It  is 
probably  true,  if  a  consumer  had  entered  into  a  contract  of  this  nature 
and  the  city  had  undertaken  under  it  to  supplj-  him  with  water,  but  had 
violated  its  duty  and  obligations  resting  upon  it  to  furnish  him  an  ade- 
quate and  wholesome  suppl}'  of  water  when  it  had  in  its  power  to  do 
so,  that  the  consumer  could  have,  nevertheless,  held  it  liable  for  the 
damages  he  had  sustained;  for,  although  the  consumer  may  have 
agreed  to  release  the  city,  still,  in  urging  his  rights  in  an  action  against 
it,  a  court  would  not  have  enforced  those  provisions  of  the  contract 
which  were  unreasonable,  in  that  the}-  released  the  cit}'  from  its  own 
negligence.  While  it  is  true  that  no  obligation  would  have  been  created 
against  a  consumer  by  reason  of  such  unreasonable  terms  in  a  contract 
of  this  nature,  still  the  city  has  no  right  to  require  him  to  sign  and 
execute  a  contract  of  this  character  as  a  prequisite  to  his  right  to  the 
use  and  consumption  of  water,  and,  upon  failure  to  comply  with  this 
unreasonable  request,  to  cut  off  the  supph'  which  he  was  entitled  to  by 
reason  of  his  previous  contract. 

It  is  next  contended  that  as  the  ordinance  upon  which  this  contract 
is  based,  together  with  a  contract  of  this  nature,  are  void  as  being  un- 
reasonable, the  city  could  not  require  him,  as  a  condition  for  the  use  of 
water,  to  enter  into  a  contract  of  a  nature  called  for  by  section  27  of 
the  ordinances.  We  clearly  think  the  plaintiff  is  also  correct  in  this 
contention.  It  is  averred  in  the  petition  that  the  other  inhabitants  of 
the  city  are  enjoying  the  privilege  of  the  use  of  water  under  a  similar 
rate  as  that  given  to  the  plaintiff  in  the  contract  of  1895,  and  that  the 
situation  and  condition  of  these  people  is  similar  to  that  of  the  plain- 
tiff. Upon  the  refusal  of  the  plaintiff  to  sign  the  contract,  as  stated  in 
Exhibit  A,  the  city  had  no  authority,  under  the  averments  of  the  peti- 
tion, to  require  him  to  enter  into  a  contract  such  as  is  required  in  sec- 
tion 27  of  the  ordinances ;  for  a  contract  as  required  by  that  ordinance 


INTERSTATE   COMMERCE  COMMISSION   V.   BALT.   <t   OHIO   R.      525 

would  place  a  greater  burden  upon  the  plaintiflf,  in  requiring  him  to 
pay  a  greater  price  for  the  consumption  of  water  for  the  same  purpose 
than  that  for  which  it  was  furnished  the  other  inhabitants  of  the  city. 
A  city  has  the  power  and  right  to  prescribe  reasonable  charges  for  the 
use  of  water  it  furnishes  to  consumers,  but  it  has  no  power  to  discrimi- 
nate between  the  inhabitants  of  the  city  in  its  charges  for  the  use  of 
water,  when  they  occupy  a  similar  situation. 

Meversed  and  remanded. 


INTERSTATE   COMMERCE  COMMISSION  v.  BALTIMORE  & 
OHIO   RAILROAD. 

Supreme  Court  of  the  United  States,  1892. 

[145  U.  S.  263.] 

This  proceeding  was  originally  instituted  by  the  filing  of  a  peti- 
tion before  the  Interstate  Commerce  Commission  by  the  Pittsburg, 
Cincinnati,  &  St.  Louis  Railway  Company  against  the  Baltimore  & 
Ohio  Railroad  Company,  to  compel  the  latter  to  withdraw  from  its 
lines  of  road,  upon  which  business  competitive  with  that  of  the  peti- 
tioner was  transacted,  the  so-called  "party  rates,"  and  to  decline  to 
give  such  rates  in  future  upon  such  lines  of  road;  also  for  an 
order  requiring  said  company  to  discontinue  the  practice  of  selling 
excursion  tickets  at  less  than  the  regular  i-ate,  unless  such  rates  were 
posted  in  its  offices,  as  required  by  law.  The  petition  set  forth 
that  the  two  roads  were  competitors  from  Pittsburg  westward ;  that 
the  Baltimore  &  Ohio  road  had  in  operation  upon  its  competing  lines 
of  road  so-called  "party  rates,"  whereby  "parties  of  ten  or  more 
persons  travelling  together  on  one  ticket  will  be  transported  over 
said  lines  of  road  between  stations  located  thereon  at  two  cents  per 
mile  per  capita,  which  is  less  than  the  rate  for  a  single  person;  said 
rate  for  a  single  person  being  about  three  cents  per  mile."^  .  .  . 

The  cause  was  heard  before  the  commission,  which  found  "that 
so-called  '  party  rate '  tickets,  sold  at  reduced  rates,  and  entitling  a 
number  of  persons  to  travel  together  on  a  single  ticket  or  otherwise, 
are  not  commutation  tickets,  within  the  meaning  of  section  22  of  the 
act  to  regulate  commerce,^  and  that,  when  the  rates  at  which  such 
tickets  for  parties  are  sold  are  lower  for  each  member  of  the  party 
than  rates  contemporaneously  charged  for  the  transportation  of 
single  passengers  between  the  same  points,  they  constitute  unjust 
.discrimination,  and  are  therefore  illegal."  It  was  ordered  and 
adjudged  "that  the  defendant,  the  Baltimore  &  Ohio  Railroad  Com- 
pany, do  forthwith  wholly  and  immediately  cease   and  desist  from 

1  Part  of  the  statement  of  facts  is  omitted.  —  Ed. 
a  Act  of  Feb.  4,  1887  ;  24  St.  379. 


526       INTERSTATE   COMMERCE   COMMISSION   V.   BALT.   &   OHIO   R. 

charging  rates  for  the  transportation  over  its  lines  of  a  number 
of  persons  travelling  together  in  one  party  which  are  less  for  each 
person  than  rates  contemporaneously  charged  by  said  defendant 
under  schedules  lawfully  in  effect  for  the  transportation  of  single 
passengers  between  the  same  points." 

The  defendant  road  having  refused  to  obey  this  mandate,  the  com- 
mission, on  May  1,  1890,  pursuant  to  section  16  of  the  Interstate 
Commerce  Act,  filed  this  bill  in  the  Circuit  Court  of  the  United 
States  for  the  Southern  District  of  Ohio  for  a  writ  of  injunction  to 
restrain  the  defendant  from  continuing  in  its  violation  of  the  order 
of  the  commission.   .  .  . 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court 

Prior  to  the  enactment  of  the  act  of  February  4,  1887,  to  regulate 
commerce,  commonly  known  as  the  "Interstate  Commerce  Act"  (24 
St.  379),  railway  traffic  in  this  country  was  regulated  by  the  princi- 
ples of  the  common  law  applicable  to  common  carriers,  which  de- 
manded little  more  than  that  they  should  carry  for  all  persons  who 
applied,  in  the  order  in  which  the  goods  were  delivered  at  the  partic- 
ular station,  and  that  their  charges  for  transportation  should  be 
reasonable.  It  was  even  doubted  whether  they  were  bound  to  make 
the  same  charge  to  all  persons  for  the  same  service;  Fitchburg 
Railroad  Co.  v.  Gage,  12  Gray,  393;  Baxendale  v.  Eastern  Counties 
Railway  Co.,  4  C.  B.  (N.  S.)  63;  Great  Western  Railway  Co.  v. 
Sutton,  L.  R.  4  H.  L.  226,  237;  Ex  parte  Benson,  18  S.  C.  38; 
Johnson  v.  Peusacola  Railway  Co.,  16  Fla.  623;  though  the  weight 
of  authority  in  this  country  was  in  favor  of  an  equality  of  charge  to 
all  persons  for  similar  services.  In  several  of  the  States  acts  had 
been  passed  with  the  design  of  securing  the  public  against  unreason- 
able and  unjust  discriminations;  but  the  inefficacy  of  these  laws 
beyond  the  lines  of  the  State,  the  impossibility  of  securing  concerted 
action  between  the  legislatures  toward  the  regulation  of  traffic  be- 
tween the  several  States,  and  the  evils  which  grew  up  under  a  policy 
of  unrestricted  competition,  suggested  the  necessity  of  legislation 
by  Congress  under  its  constitutional  power  to  regulate  commerce 
among  the  several  States.  These  evils  ordinarily  took  the  shape  of 
inequality  of  charges  made,  or  of  facilities  furnished,  and  were 
usually  dictated  by  or  tolerated  for  the  promotion  of  the  interests  of 
the  officers  of  the  corporation  or  of  the  corporation  itself,  or  for  the 
benefit  of  some  favored  persons  at  the  expense  of  others,  or  of  some 
particular  locality  or  community,  or  of  some  local  trade  or  commer- 
cial connection,  or  for  the  destruction  or  crippling  of  some  rival 
or  hostile  line. 

The  principal  objects  of  the  Interstate  Commerce  Act  were  to 
secure  just  and  reasonable  charges  for  transportation;  to  prohibit 
unjust  discriminations  in  the  rendition  of  like  serxMces  under  similar 
circumstances  and  conditions;  to  prevent  undue  or  unreasonable 
preferences  to  persons,  corporations,  or  localities ;  to  inhibit  greater 


INTERSTATE   COMMERCE   COMMISSION   V.  SALT.   4   OHIO   R.      527 

compensation  for  a  shorter  than  for  a  longer  distance  over  the  same 
line;  and  to  abolish  combinations  for  the  pooling  of  freights.  It  was 
not  designed,  however,  to  prevent  competition  between  different 
roads,  or  to  interfere  with  the  customary  arrangements  made  by  rail- 
way companies  for  reduced  fai'es  in  consideration  of  increased  mile- 
age, where  such  reduction  did  not  operate  as  an  unjust  discrimina- 
tion against  other  persons  travelling  over  the  road.  In  other  words, 
it  was  not  intended  to  ignore  the  principle  that  one  can  sell  at  whole- 
sale cheaper  than  at  retail.  It  is  not  all  discriminations  or  preferences 
that  fall  within  the  inhibition  of  the  statute,  — only  such  as  are  unjust 
or  unreasonable.  For  instance,  it  would  be  obviously  unjust  to 
charge  A.  a  greater  sum  than  B.  for  a  single  trip  from  Washington  to 
Pittsburg;  but,  if  A.  agrees  not  only  to  go,  but  to  return  by  the 
same  route,  it  is  no  injustice  to  B.  to  permit  him  to  do  so  for  a 
reduced  fare,  since  the  services  are  not  alike,  nor  the  circumstances 
and  conditions  substantially  similar,  as  required  by  section  2  to 
make  an  unjust  discrimination.  Indeed,  the  possibility  of  just 
discriminations  and  reasonable  preferences  is  recognized  by  these 
sections,  in  declaring  what  shall  be  deemed  unjust.  We  agree, 
however,  with  the  plaintiff  in  its  contention  that  a  charge  may  be 
perfectly  reasonable  under  section  1,  and  yet  may  create  an  unjust 
discrimination  or  an  unreasonable  preference  under  sections  2  and  3. 
As  was  said  by  Mr.  Justice  Blackburn  in  Great  Western  Railway 
Co.  V.  Sutton,  L.  R.  4  H.  L.  226,  239:  "When  it  is  sought  to  show 
that  the  charge  is  extortionate,  as  being  contrary  to  the  statutable 
obligation  to  charge  equally,  it  is  immaterial  whether  the  charge 
is  reasonable  or  not;  it  is  enough  to  show  that  the  company  carried 
for  some  other  person  or  class  of  persons  at  a  lower  charge  during 
the  period  throughout  which  the  party  complaining  was  charged 
more  under  the  like  circumstances." 

The  question  involved  in  this  case  is  whether  the  principle  above 
stated,  as  applicable  to  two  individuals,  applies  to  the  purchase  of 
a  single  ticket  covering  the  transportation  of  10  or  more  persons  from 
one  place  to  another.  These  are  technically  known  as  "party  rate 
tickets,"  and  are  issued  principally  to  theatrical  and  operatic  com- 
panies for  the  transportation  of  their  troupes.  Such  ticket  is  clearly 
neither  a  "mileage  "  nor  an  "excursion  "  ticket  within  the  exception 
of  section  22 ;  and  upon  the  testimony  in  this  case  it  may  be  doubt- 
ful whether  it  falls  within  the  definition  of  "commutation  tickets," 
as  those  words  are  commonly  understood  among  railway  officials. 
The  words  "commutation  ticket"  seem  to  have  no  definite  meaning. 
They  are  defined  by  Webster  (edition  of  1891)  as  "a  ticket,  as 
for  transportation,  which  is  the  evidence  of  a  contract  for  service  at 
a  reduced  rate."  If  this  definition  be  applicable  here,  then  it  is  clear 
that  it  would  include  a  party  rate  ticket.  In  the  language  of  the 
railway,  however,  they  are  principally,  if  not  wholly,  used  to  desig- 
nate tickets  for  transportation  during  a  limited  time  between  neigh* 


528      INTERSTATE   COMMERCE   COMMISSION   V.   BALT.    &   OHIO   R. 

boring  towns,  or  cities  and  suburban  towns.  The  party  rate  ticket 
upon  the  defendant's  road  is  a  single  ticket,  issued  to  a  party  of  10 
or  more,  at  a  fixed  rate  of  2  cents  per  mile,  or  a  discount  of  one  third 
from  the  regular  passenger  rate.  The  reduction  is  not  made  by  way 
of  a  secret  rebate  or  drawback,  but  the  rates  are  scheduled,  posted, 
and  open  to  the  public  at  large. 

But,  assuming  the  weight  of  evidence  in  this  case  to  be  that  the 
party  rate  ticket  is  not  a  "commutation  ticket,"  as  that  word  was 
commonly  understood  at  the  time  of  the  passage  of  the  act,  but  is  a 
distinct  class  by  itself,  it  does  not  necessarily  follow  that  such 
tickets  are  unlawful.  The  unlawfulness  defined  by  sections  2  and  3 
consists  either  in  an  "unjust  discrimination"  or  an  "undue  or  un- 
reasonable preference  or  advantage,"  and  the  object  of  section  22  was 
to  settle,  beyond  all  doubt,  that  the  discrimination  in  favor  of  cer- 
tain persons  therein  named  should  not  be  deemed  unjust.  It  does 
not  follow,  however,  that  there  may  not  be  other  classes  of  persons 
in  whose  favor  a  discrimination  may  be  made  without  such  discrim- 
ination being  unjust.  In  other  words,  this  section  is  rather  illustra- 
tive than  exclusive.  Indeed,  many,  if  not  all,  the  excepted  classes 
named  in  section  22  are  those  which,  in  the  absence  of  this  section, 
would  not  necessarily  be  held  the  subjects  of  an  unjust  discrimina- 
tion, if  more  favorable  terms  were  extended  to  them  than  to  ordinary 
passengers.  Such,  for  instance,  are  property  of  the  United  States, 
State,  or  municipal  governments;  destitute  and  homeless  persons 
transported  free  of  charge  by  charitable  societies ;  indigent  persons 
transported  at  the  expense  of  municipal  governments;  inmates  of 
soldiers'  homes,  etc.,  and  ministers  of  religion,  — in  favor  of  whom  a 
reduction  of  rates  had  been  made  for  many  years  before  the  passage 
of  the  act.  It  may  even  admit  of  serious  doubt  whether,  if  the  mile- 
age, excursion,  or  commutation  tickets  had  not  been  mentioned  at  all 
in  this  section,  they  would  have  fallen  within  the  prohibition  of 
sections  2  and  3 ;  in  other  words,  whether  the  allowance  of  a  reduced 
rate  to  persons  agreeing  to  travel  1,000  miles,  or  to  go  and  return  by 
the  same  road,  is  a  "like  and  contemporaneous  service  under  sub- 
stantially similar  conditions  and  circumstances  "  as  is  rendered  to  a 
person  who  travels  upon  an  ordinary  single  trip  ticket.  If  it  be  so, 
then,  under  State  laws  forbidding  unjust  discriminations,  every  such 
ticket  issued  between  points  within  the  same  State  must  be  illegal. 
In  view  of  the  fact,  however,  that  every  railway  company  issues  such 
tickets',  that  there  is  no  reported  case.  State  or  federal,  wherein 
their  illegality  has  been  questioned ;  that  there  is  no  such  case  in  Eng- 
land; and  that  the  practice  is  universally  acquiesced  in  by  the 
public,  —  it  would  seem  that  the  issuing  of  such  tickets  should  not  be 
held  an  unjust  discrimination  or  an  unreasonable  preference  to  the 
persons  travelling  upon  them. 

But,  whether  these  party  rate  tickets  are  commutation  tickets 
proper,  as  known  to  railway  oflScials,  or  not,    they  are  obviously 


INTERSTATE    COMMERCE    COMMISSION   V.   BALT.   &   OHIO   R.     529 

within  the  commuting  principle.  As  stated  in  the  opinion  of  Judge 
Sage  in  the  court  below:  "  The  difference  between  commutation  and 
party  rate  tickets  is  that  commutation  tickets  are  issued  to  induce 
people  to  travel  more  frequently,  and  party  rate  tickets  are  issued  to 
induce  more  people  to  travel.  There  is,  however,  no  difference  in 
principle  between  them,  the  object  in  both  cases  being  to  increase 
travel  without  unjust  discrimination,  and  to  secure  patronage  that 
would  not  otherwise  be  secured." 

The  testimony  indicates  that  for  many  years  before  the  passage  of 
the  act  it  was  customary  for  railroads  to  issue  tickets  at  reduced  rates 
to  passengers  making  frequent  trips, — trips  for  long  distances,  and 
trips  in  parties  of  10  or  more,  lower  than  the  regular  single  fare 
charged  between  the  same  points;  and  such  lower  rates  were  univer- 
sally made  at  the  date  of  the  passage  of  the  act.  As  stated  in  the 
answer,  to  meet  the  needs  of  the  commercial  traveller,  the  1,000-mile 
ticket  was  issued;  to  meet  the  needs  of  the  suburban  resident  or 
frequent  traveller,  several  forms  of  tickets  were  issued.  For  exam- 
ple, monthly  or  quarterly  tickets,  good  for  any  number  of  trips  within 
the  specified  time;  and  10,  25,  or  50  trip  tickets,  good  for  a  specified 
number  of  trips  by  one  person,  or  for  one  trip  by  a  specified  number 
of  pei'sons;  to  accommodate  parties  of  10  or  more,  a  single  ticket, 
one  way  or  round  trip,  for  the  whole  party,  was  made  up  by  the  agent 
on  a  skeleton  form  furnished  for  that  purpose ;  to  accommodate  excur- 
sionists travelling  in  parties  too  large  to  use  a  single  ticket,  special 
individual  tickets  were  issued  to  each  person.  Tickets  good  for  a 
specified  number  of  trips  were  also  issued  between  cities  where  travel 
was  frequent.  In  short,  it  was  an  established  principle  of  the  busi- 
ness that  whenever  the  amount  of  travel  more  than  made  up  to  the 
carrier  for  the  reduction  of  the  charge  per  capita,  then  such -reduction 
was  reasonable  and  just  in  the  interests  both  of  the  carrier  and  of 
the  public.  Although  the  fact  that  railroads  had  long  been  in  the 
habit  of  issuing  these  tickets  would  be  by  no  means  conclusive  evi- 
dence that  they  were  legal,  since  the  main  purpose  of  the  act  was  to 
put  an  end  to  certain  abuses  which  had  crept  into  the  management 
of  railroads,  yet  Congress  may  be  presumed  to  have  had  those  prac- 
tices in  view,  and  not  to  have  designed  to  interfere  with  them,  except 
so  far  as  they  were  unreasonable  in  themselves,  or  unjust  to  others. 
These  tickets,  then,  being  within  the  commutation  principle  of 
allowing  reduced  rates  in  consideration  of  increased  mileage,  the 
real  question  is  whether  this  operates  as  an  undue  or  unreasonable 
preference  or  advantage  to  this  particular  description  of  traffic,  or  an 
unjust  discrimination  against  others.  If,  for  example,  a  railway 
makes  to  the  public,  generally,  a  certain  rate  of  freight,  and  to  a 
particular  individual  residing  in  the  same  town  a  reduced  rate  for 
the  same  class  of  goods,  this  may  operate  as  an  undue  preference, 
since  it  enables  the  favored  party  to  sell  his  goods  at  a  lower  price 
than  his  competitors,  and  may  even  enable  him  to  obtain  a  complete 


530     INTEKSTATE   COMMERCE   COMMISSION   V.   BALT,   4   OHIO   B. 

monopoly  of  that  business.  Even  if  the  same  reduced  rate  be  allowed 
to  every  one  doing  the  same  amount  of  business,  such  discrimination 
may,  if  carried  too  far,  operate  unjustly  upon  the  smaller  dealers 
engaged  in  the  same  business  and  enable  the  larger  ones  to  drive 
them  out  of  the  market. 

The  same  result,  however,  does  not  follow  from  the  sale  of  a  ticket 
for  a  number  of  passengers  at  a  less  rate  than  for  a  single  passenger; 
it  does  not  operate  to  the  prejudice  of  the  single  passenger,  who 
cannot  be  said  to  be  injured  by  the  fact  that  another  is  able,  in  a  par- 
ticular instance,  to  travel  at  a  less  rate  than  he.  If  it  operates  injuri- 
ously towards  any  one  it  is  the  rival  road,  which  has  not  adopted 
corresponding  rates;  but,  as  before  observed,  it  was  not  the  design  of 
the  act  to  stifle  competition,  nor  is  there  any  legal  injustice  in  one 
person  procuring  a  particular  service  cheaper  than  another.  If  it  be 
lawful  to  issue  these  tickets,  then  the  Pittsburg,  Chicago,  &  St. 
Louis  Railway  Company  has  the  same  right  to  issue  them  that  the 
defendant  has,  and  may  compete  with  it  for  the  same  traffic ;  but  it 
is  unsound  to  argue  that  it  is  unlawful  to  issue  them  because  it  has 
not  seen  fit  to  do  so.  Certainly  its  construction  of  the  law  is  not 
binding  upon  this  court.  The  evidence  shows  that  the  amount  of 
business  done  by  means  of  these  party  rate  tickets  is  very  large ;  that 
theatrical  and  operatic  companies  base  their  calculation  of  profits  to 
a  certain  extent  upon  the  reduced  rates  allowed  by  railroads;  and 
that  the  attendance  at  conventions,  political  and  religious,  social 
and  scientific,  is,  in  a  great  measure,  determined  by  the  ability  of 
the  delegates  to  go  and  come  at  a  reduced  charge.  If  these  tickets 
were  withdrawn,  the  defendant  road  would  lose  a  large  amount  of 
travel,  and  the  single  trip  passenger  would  gain  absolutely  nothing. 
If  a  case  were  presented  where  a  railroad  refused  an  application  for  a 
party  rate  ticket  upon  the  ground  that  it  was  not  intended  for  the 
use  of  the  general  public,  but  solely  for  theatrical  troupes,  there 
would  be  much  greater  reason  for  holding  that  the  latter  were  favored 
with  an  undue  preference  or  advantage. 

In  order  to  constitute  an  unjust  discrimination  under  section  2  the 
carrier  must  charge  or  receive  directly  from  one  person  a  greater  or 
less  compensation  than  from  another,  or  must  accomplish  the  same 
thing  indirectly  by  means  of  a  special  rate,  rebate,  or  other  device* 
but,  in  either  case,  it  must  be  for  a  "like  and  contemporaneous  ser- 
vice in  the  transportation  of  a  like  kind  of  traffic,  under  substantially 
similar  circumstances  and  conditions."  To  bring  the  present  case 
within  the  words  of  this  section,  we  must  assume  that  the  transporta- 
tion of  10  persons  on  a  single  ticket  is  substantially  identical  with 
the  transportation  of  one,  and,  in  view  of  the  universally  accepted 
fact  that  a  man  may  buy,  contract,  or  manufacture  on  a  large  scale 
cheaper  proportionately  than  upon  a  small  scale^  this  is  impossible. 

In  this  connection  we  quote  with  approval  from  the  opinion  of 
Judge  Jackson  in  the  court  below:  "  To  come  within  the  inhibition 


INTERSTATE   COMMERCE   COMMISSION   V.   BALT.   &  OHIO  R.      531 

of  said  sections,  the  differences  must  be  made  under  like  conditions; 
ttiat  is,  there  must  be  contemporaneous  service  in  the  transportation 
of  like  kinds  of  traffic  under  substantially  the  same  circumstances 
and  conditions.  In  respect  to  passenger  traffic,  the  positions  of  the 
respective  persons  or  classes  between  whom  differences  in  charges  are 
made  must  be  compared  with  each  other,  and  there  must  be  found  to 
exist  substantial  identity  of  situation  and  of  service,  accompanied  by 
irregularity  and  partiality  resulting  in  undue  advantage  to  one,  or 
undue  disadvantage  to  the  other,  in  order  to  constitute  unjust 
discrimination." 

The  English  Traffic  Act  of  1854  contains  a  clause  similar  to  sec- 
tion 3  of  the  Interstate  Commerce  Act,  that  "no  such  company  shall 
make  or  give  any  undue  or  unreasonable  preference  or  advantage  to 
or  in  favor  of  any  particular  pei'son  or  company,  or  any  particular 
description  of  traffic,  in  any  respect  whatsoever,  nor  shall  any  such 
company  subject  any  particular  person  or  company,  or  any  particular 
description  of  traffic,  to  any  undue  or  unreasonable  prejudice  or  dis- 
advantage in  any  respect  whatsoever." 

In  Hozier  v.  Caledonian  Railroad  Co.,  17  Sess.  Cas.  (D)  302,  1 
Nev.  &  McN.  27,  complaint  was  made  by  one  who  had  frequent 
occasion  to  travel,  that  passengers  from  an  intermediate  station  be- 
tween Glasgow  and  Edinburgh  were  charged  much  greater  rates  to 
those  places  than  were  charged  to  other  through  passengers  between 
these  termini;  but  the  Scotch  Court  of  Session  held  that  the  peti- 
tioner had  not  shown  any  title  or  interest  to  maintain  the  proceeding; 
his  only  complaint  being  that  he  did  not  choose  that  parties  travelling 
from  Edinj^urgh  to  Glasgow  should  enjoy  the  benefit  of  a  cheaper 
rate  of  travel  than  he  himself  could  enjoy.  "  It  provides,"  said  the 
court,  "  for  giving  undue  preference  to  parties  /^ari  passu  in  the 
matter,  but  you  must  bring  them  into  competition  in  order  to  give 
them  an  interest  to  complain."  This  is  in  substance  holding  that 
the  allowance  of  a  reduced  through  rate  worked  no  injustice  to 
passengers  living  on  the  line  of  the  road,  who  were  obliged  to  pay 
at  a  greater  rate.  So  in  Jones  v.  Eastern  Counties  Railway  Co.,  3 
C.  B.  (N.  S.)  718,  the  court  refused  an  injunction  to  compel  a  railway 
company  to  issue  season  tickets  between  Colchester  and  London 
upon  the  same  terms  as  they  issued  them  between  Harwich  and 
London,  upon  the  mere  suggestion  that  the  granting  of  the  latter,  the 
distance  being  considerably  greater,  at  a  much  lower  rate  than  the 
former,  was  an  undue  and  unreasonable  preference  of  the  inhabitants 
of  Harwich  over  those  of  Colchester.  Upon  the  other  hand,  in  Ran- 
some  V.  Eastern  Counties  Railway  Co.,  1  C.  B.  (N.  S.)  437,  where  it 
was  manifest  that  a  railway  company  charged  Ipswich  merchants, 
who  sent  from  thence  coal  which  had  come  thither  by  sea,  a  higher 
rate  for  the  carriage  of  their  coal  than  it  charged  Peterboro  mer- 
chants, who  had  made  arrangements  with  it  to  carry  large  quantities 
over  its  lines,  and  that  the  sums  charged  the  Peterboro  merchants  were 


532      INTERSTATE   COMMERCE   COMMISSION   V.  BALT.   A  OHIO   R. 

Gxed  so  as  to  enable  them  to  compete  with  the  Ipswich  merchants, 
the  court  granted  an  injunction,  upon  the  ground  of  an  undue 
preference  to  the  Peterboro  merchants,  the  object  of  the  discrimina- 
tion being  to  benefit  the  one  dealer  at  the  expense  of  the  other,  by 
depriving  the  latter  of  the  natural  advantages  of  his  position.  In 
Oxlade  v.  Northeastern  Railway  Co.,  1  C.  B.  (N.  S.)  454,  a  railway 
company  was  held  justified  in  carrying  goods  for  one  person  for  a 
less  rate  than  that  at  which  they  carried  the  same  description  of  goods 
for  another,  if  there  be  circumstances  which  render  the  cost  of  carry- 
ing the  goods  for  the  former  less  than  the  cost  of  carrying  them  for 
the  latter,  but  that  a  desire  to  introduce  northern  coke  into  a  certain 
district  was  not  a  legitimate  ground  for  making  special  agreements 
with  different  merchants  for  the  carriage  of  coal  and  coke  at  a  rate 
lower  than  the  ordinary  charge,  there  being  nothing  to  show  that  the 
pecuniary  interests  of  the  company  were  affected;  and  that  this  was 
an  undue  preference. 

In  short,  the  substance  of  all  these  decisions  is  that  railway  com- 
panies are  only  bound  to  give  the  same  terms  to  all  persons  alike 
under  the  same  conditions  and  circumstances,  and  that  any  fact 
which  produces  an  inequality  of  condition  and  a  change  of  circum- 
stances justifies  an  inequality  of  charge.  These  traflBc  acts  do  not 
appear  to  be  as  comprehensive  as  our  own,  and  may  justify  contracts 
which  with  us  would  be  obnoxious  to  the  long  and  short  haul  clause 
of  the  act,  or  would  be  open  to  the  charge  of  unjust  discrimination. 
But,  so  far  as  relates  to  the  question  of  "  undue  preference,"  it  may 
be  presumed  that  Congress,  in  adopting  the  language  of  the  English 
act,  had  in  mind  the  construction  given  to  these  words  by  the  Eng- 
lish courts,  and  intended  to  incorporate  them  into  the  statute. 
McDonald  v.  Hovey,  110  U.  S.  619. 

There  is  nothing  in  the  objection  that  party  rate  tickets  afford 
facilities  for  speculation,  and  that  they  would  be  used  by  ticket 
brokers  or  "  scalpers "  for  the  purpose  of  evading  the  law.  The 
party  rate  ticket,  as  it  appears  in  this  case,  is  a  single  ticket  cover- 
ing the  transportation  of  10  or  more  persons,  and  would  be  much  less 
available  in  the  hands  of  a  ticket  broker  than  an  ordinary  single 
ticket,  since  it  could  only  be  disposed  of  to  a  person  who  would  be 
willing  to  pay  two  thirds  of  the  regular  fare  for  that  number  of 
people.  It  is  possible  to  conceive  that  party  rate  tickets  may,  by  a 
reduction  of  the  number  for  whom  they  may  be  issued,  be  made  the 
pretext  for  evading  the  law,  and  for  the  purpose  of  cutting  rates; 
but  should  such  be  the  case,  the  courts  would  have  no  diflBculty  in 
discovering  the  purpose  for  which  they  were  issued,  and  applying  the 
proper  remedy. 

Upon  the  whole,  we  are  of  the  opinion  that  party  rate  tickets,  as 
used  by  the  defendant,  are  not  open  to  the  objections  found  by  the 
Interstate  Commerce  Commission,  and  are  not  in  violation  of  the  act 
to  regulate  commerce,  and  the  decree  of  the  court  below  is  therefore 

Affirmed. 


STATE   V.  CINCINNATI,  NEW   ORLEANS,   ETC.   RAILWAY.  533 


STATE  V.   CINCINNATI,  NEW  ORLEANS,  AND  TEXAS 
PACIFIC    RAILWAY   CO. 

Supreme  Court  of  Ohio,  1890. 

[47  Ohio  St.  130.1] 

Bradbury,  J.  .  .  .  The  petitions  charge,  among  other  things,  that 
the  defendants  misused  their  corporate  powers  and  franchises  by  dis- 
criminating in  their  rates  of  freight  in  favor  of  certain  refiners  of 
petroleum  oil  connected  with  the  Standard  Oil  Company,  by  charging 
other  shippers  of  like  products  unreasonable  rates,  by  arbitrarily  and 
suddenly  changing  the  same,  and,  finally,  by  confederating  with  the 
favored  shippers  to  create  and  foster  a  monopoly  in  refined  oil,  to  the 
injur}'  of  other  refiners  and  the  public ;  and,  further,  that  the  defend- 
ants claimed  and  exercised,  in  contravention  of  law,  the  right  to 
charge,  for  shipping  oil  in  tank-cars,  a  lower  rate  of  freight  per  100 
pounds  than  they  charged  for  shipping  the  same  in  barrels,  in  carload 
lots.  The  defendants,  by  answer,  among  other  matters,  denied  charg- 
ing any  shippers  unreasonable  rates  of  freight,  or  that  thej'  arbitrarily 
or  suddenly  changed  such  rates,  and  denied  any  confederacy  with  any 
one  to  establish  a  monopoly*.  The  actions  were  referred  to  a  referee, 
to  take  the  evidence,  and  to  report  to  this  court  his  findings  of  fact  and 
conclusions  of  law  therefrom,  —  all  which  has  been  done;  and  the 
cases  are  before  us  upon  this  report.  ... 

That  the  Cincinnati,  Washington  &  Baltimore  Railway  Company  did 
discriminate  in  its  rates  for  freight  on  petroleum  oil  in  favor  of  the 
Camden  Consolidated  Oil  Compan}',  and  that  the  Cincinnati,  New 
Orleans  &  Texas  Pacific  Railwa}'  Company  did  the  same  in  favor  of 
the  Chess-Carly  Compan}',  is  shown  by  the  finding  of  the  referee, 
which  is  clearl}'  sustained  b}'  the  evidence.  That  these  discriminating 
rates  were  in  some  instances  strikingly  excessive,  tended  to  foster  a 
monopoly,  tended  to  injure  the  competitors  of  the  favored  shippers, 
and  were  in  many  instances  prohibitory,  actually  excluding  these  com- 
petitors from  extensive  and  valuable  markets  for  their  oil,  giving  to 
the  favored  shippers  absolute  control  thereof,  is  established  beyond 
any  serious  controvers}'.  The  justification  interposed  is  that  this  was 
not  done  pursuant  to  any  confederacy  with  the  favored  shipper,  or  with 
any  purpose  to  inflict  injury  on  their  competitors,  but  in  order  that  the 
railroad  companies  might  secure  freight  that  would  otherwise  have 
been  lost  to  them.  This  we  do  not  think  sufficient.  We  are  not  un- 
mindful of  the  difficulties  that  stand  in  the  wa}'  of  prescribing  a  line  of 
duty  to  a  railway  compan}',  nor  do  we  undertake  to  say  the}'  may  not 
pursue  their  legitimate  objects,  and  shape  their  policy  to  secure  bene- 
fits to  themselves,  though  it  may  press  severely  upon  the  interests  of 

1  This  case  is  abridged.  —  Ed. 


534         STATE   V.   CINCINNATI,  NEW  ORLEANS,  ETC.    RAILWAY. 

Others ;  but  we  do  hold  that  they  cannot  be  permitted  to  foster  or 
create  a  monopol}*,  b}'  giving  to  a  favored  shipper  a  discriminating 
rate  of  freight.  As  common  carriers,  their  dut}-  is  to  carr}'  indiffer- 
ently for  all  who  may  appl}-,  and  in  the  order  in  which  the  application 
is  made,  and  upon  the  same  terms;  and  the  assumption  of  a  right  to 
make  discriminations  in  rates  for  freight,  such  as  was  claimed  and 
exercised  by  the  defendants  in  this  case,  on  the  ground  that  it  thereby 
secured  freight  that  it  would  otherwise  lose,  is  a  misuse  of  the  rights 
and  privileges  conferred  upon  it  bj-  law.  A  full  and  complete  discus- 
sion of  the  principles,  and  a  thorough  collation  of  the  authorities,  bear- 
ing upon  the  duties  of  railroad  companies  towards  their  customers,  is 
to  be  found  in  the  opinion  of  Judge  Atherton,  in  the  case  of  Scofield 
V.  Railway  Co.,  43  Ohio  St.  571,  to  which  nothing  need  be  now  added. 
It  appears  that,  of  the  two  methods  of  shipping  oil,  —  that  b}-  the 
barrel,  in  carload  lots,  and  that  in  tank-cars,  —  the  first  only  was 
available  to  George  Rice,  and  the  other  refiners  of  petroleum  oil  at 
Marietta,  Ohio,  as  the}'  owned  no  tank-cars,  nor  did  the  defendants 
own  or  undertake  to  provide  any ;  but  that  both  methods  were  open  to 
the  Camden  Consolidated  Oil  Company  and  the  Chess-Carl}*  Company, 
by  reason  of  their  ownership  of  tank-cars,  and  that  the  rate  per  barrel 
in  tank-cars  was  very  much  lower  than  in  barrel  packages,  in  box-cars  ; 
that  in  fact  the  Cincinnati,  Washington  &  Baltimore  Railway-  Com- 
pan}*,  after  allowing  the  Camden  Consolidated  Oil  Compan}'  a  rebate, 
and  allowing  the  Baltimore  &  Ohio  Railway  Compan}'  for  switching 
cars,  received  from  the  Camden  Consolidated  Oil  Company  only  about 
one-half  the  open  rates  it  charged  the  Marietta  refiners,  and  that  both 
railroad  companies  claimed  the  right  to  make  different  rates,  based 
upon  the  different  methods  of  shipping  oil,  and  the  fact  of  the  owner- 
ship by  shippers  of  the  tank-cars  used  by  them.  It  was  the  duty  of 
the  defendants  to  furnish  suitable  vehicles  for  transporting  freight 
offered  to  them  for  that  purpose,  and  to  offer  equal  terms  to  all 
shippers.  A  railroad  is  an  improved  highwa}'.  Thft  public  are  equally 
entitled  to  its  use.  It  must  provide  equal  accommodation  for  all, 
upon  the  same  terms.  The  fact  that  one  shipper  may  be  provided  with 
vehicles  of  his  own  entitles  him  to  no  advantage  over  his  competitor  not 
80  provided.  The  true  rule  is  announced  by  the  interstate  commerce 
commission  in  the  report  of  the  case  of  Rice  v.  Railroad  Co.  "The 
fact  that  the  owner  supplies  the  rolling  stock  when  his  oil  is  shipped  in 
tanks,  in  our  opinion,  is  entitled  to  little  weight,  when  rates  are  under 
consideration.  It  is  properly  the  business  of  railroad  companies  to 
suppl}'  to  their  customers  suitable  vehicles  of  transportation  (Railroad 
Co.  V.  Pratt,  22  Wall.  123)  and  then  to  offer  their  use  to  everybod}-, 
impartially."  1  Int  St.  Com.  R.  547.  No  doubt,  a  shipper  who  owns 
cars  ma}'  be  paid  a  reasonable  compensation  for  their  use,  so  that  the 
compensation  is  not  made  a  cover  for  discriminating  rates,  or  other 
advantages  to  such  owner  as  a  shipper.  Nor  is  there  any  valid  objec- 
tion to  such  owner  using  them  exclusively,  as  long  as  the  carrier 


STATE  V.   CINCINNATI,    NEW   ORLEANS,   ETC.   RAILWAY.         535 

provides  equal  accommodations  to  its  other  customers.  It  ma}-  be 
claimed  that  if  a  railroad  companj'  permit  all  shippers,  indifferently 
and  upon  equal  terms,  to  provide  cars  suitable  for  their  business,  and 
to  use  them  exclusivel}-,  no  discrimination  is  made.  This  ma}-  be 
theoretically  true,  but  is  not  so  in  its  application  to  the  actual  state  of 
the  business  of  the  country ;  for  a  very  large  proportion  of  the  cus- 
tomers of  a  railroad  have  not  a  volume  of  business  large  enough  to 
warrant  equipping  themselves  with  cars,  and  might  be  put  at  a  ruinous 
disadvantage  in  the  attempt  to  compete  with  more  extensive  establish- 
ments. Aside  from  this,  however,  a  shipper  is  not  bound  to  provide  a 
car.  The  duty  of  providing  suitable  facilities  for  its  customers  rests 
upon  the  railroad  company;  and  if,  instead  of  providing  sufficient  and 
suitable  cars  itself,  this  is  done  by  certain  of  its  customers,  even  for 
their  own  convenience,  yet  the  cars  thus  provided  are  to  be  regarded 
as  part  of  the  equipment  of  the  road.  It  being  the  duty  of  a  railroad 
company  to  transport  freight  for  all  persons,  indifferentl}-,  and  in  the 
order  in  which  its  transportation  is  applied  for,  it  cannot  be  permitted 
to  suffer  freight  cars  to  be  placed  upon  its  track  by  any  customer  for 
his  private  use,  except  upon  the  condition  that,  if  it  does  not  provide 
other  cars  sufficient  to  transport  the  freight  of  other  customers  in  the 
order  that  application  is  made,  they  may  be  used  for  that  purpose. 
Were  this  not  so,  a  mode  of  discrimination  fatal  to  all  successful  com- 
petition by  small  establishments  and  operators  with  larger  and  more 
opulent  ones  could  be  successfully  adopted  and  practised  at  the  will  of 
the  railroad  company,  and  the  favored  shipper. 

The  advantages,  if  an}-,  to  the  carrier,  presented  by  the  tank-car 
method  of  transporting  oil  over  that  by  barrels,  in  box-cai*s,  in  car- 
load lots,  are  not  sufficient  to  justify  any  substantial  difference  in  the 
rate  of  freight  for  oil  transported  in  that  way ;  but  if  there  were  any 
such  advantages,  as  it  is  the  duty  of  the  carrier  to  furnish  proper 
vehicles  for  transporting  it,  if  it  failed  in  this  duty,  it  could  not,  in 
justice,  avail  itself  of  its  own  neglect  as  a  ground  of  discrimination. 
It  must  either  provide  tank-cars  for  all  of  its  customers  alike,  or  give 
such  rates  of  freight  in  barrel  packages,  by  the  carload,  as  will  place 
its  customers  using  that  method  on  an  equal  footing  with  its  customers 
adopting  the  other  method.  Judgment  ousting  defendants  from  the 
right  to  make  or  charge  a  rate  of  freight  per  100  pounds  for  transport- 
ing oil  in  iron  tank-cars,  substantially  lower  than  for  transporting  it  in 
barrels,  in  carload  lots. 


636  GEIFFIN  V.   GOLDSBORO   WATEB  CX). 


GRIFFIN  V.  GOLDSBORO   WATER  CO. 
Supreme  Court  of  North  Carolina,  1898. 

[112  AT.  C.  206.] 

CrvTL  action  for  an  injunction,  pending  in  Wajne  Superior  Court  and 
heard  before  Timberlake,  J.,  at  Chambers  on  19th  April,  1898,  on  a 
motion  to  dissolve  a  restraining  order  thereto  issued.  His  Honor  con- 
tinued the  injunction  to  the  hearing  and  defendant  appealed. 

Clark,  J.  The  defendant  corporation  is  the  owner  of  a  plant  wliich 
supplies  water  to  Goldsboro  and  its  inhabitants  under  a  franchise 
granted  bj'  the  city.  It  has  no  competition.  The  complaint  alleges 
that  to  prevent  competition  the  defendant  reduced  its  rates  largely  to 
certain  parties  who  threatened  to  establish  a  rival  company,  but  not 
only  did  not  make  a  corresponding  reduction  to  the  plaintiffs  and 
other  customers  but  proposes  to  put  in  meters  whereby  the  rates  to 
plaintiffs  and  others  will  be  greatly  increased,  and  threatens  to  cut  off 
the  water  supply  of  the  plaintiffs  if  they  do  not  pay  the  increased  rates, 
which  will  be  to  their  great  injury ;  that  the  rates  charged  b}-  the  cor- 
poration are  not  uniform  and  those  charged  the  plaintiffs  are  unjust 
and  unreasonable.  The  defendant  denies,  as  a  matter  of  fact,  that 
the  rates  charged  the  plaintiffs  are  unreasonable  and  contends,  as  a 
proposition  of  law,  that  the  company's  rates  are  not  required  to  be 
uniform  and  that  it  can  discriminate  in  the  rates  it  shall  charge.  It 
also  relies  upon  the  schedule  of  rates  contained  in  the  contract  with 
the  city  and  avers  that  the  charges  to  the  plaintiffs  do  not  exceed  the 
rates  therein  permitted. 

The  defendant  corporation  operates  under  the  franchise  from  the 
cit}',  which  permits  it  to  lay  its  pipes  in  the  public  streets  and  other- 
wise to  take  benefit  of  the  right  of  eminent  domain.  Besides,  from 
the  very  nature  of  its  functions  it  is  "  affected  with  a  public  use."  In 
Munn  V.  Illinois,  94  U.  S.  113,  which  was  a  case  in  regard  to  regulat- 
ing the  charges  of  grain  elevators,  it  was  held  that,  in  England  from 
time  immemorial  and  in  this  country  from  its  first  colonization,  it  has 
been  customary'  to  regulate  ferries,  common  carriers,  hackmen,  bakers, 
millers,  public  wharfingers,  auctioneers,  innkeepers,  and  many  other 
matters  of  like  nature,  and,  where  the  owners  of  property  devotes  it  to 
a  use  in  which  the  public  has  an  interest,  he  in  effect  grants  to  the 
public  an  interest  in  such  use  and  must  to  the  extent  of  that  interest 
submit  to  be  controlled  b}-  the  public. 

Probably  the  most  familiar  instances  with  us  are  the  public  mills 
whose  tolls  are  fixed  by  statute,  and  railroad,  telegraph,  and  telephone 
companies,  for  the  regulation  of  whose  conduct  and  charges  there  is 
a  State  Commission,  established  by  law.  There  have  been  reiterated 
decisions  in  the  United  States  Supreme  Court  and  in  the  several  States 


GRIFFIN   V.   GOLDSBORO   WATER   GO.  537 

affirming  the  doctrine  laid  down  in  Munn  v.  Illinois,  supra,  and  as  to 
every  class  of  interest  aifected  with  a  public  use,  among  others,  water 
companies.  Spring  Valley  v.  Schotller,  110  U.  S.  347.  The  right  of 
fixing  rates  is  a  legislative  function  which  the  courts  cannot  exercise, 
but  it  is  competent  for  the  courts,  certainly  in  the  absence  of  legisla- 
tive regulations,  to  protect  the  public  against  the  exaction  of  oppres- 
sive and  unreasonable  charges  and  discrimination.  "The  franchise 
of  laying  pipes  through  the  cit}^  streets  and  selling  water  to  the  in- 
habitants being  in  the  nature  of  a  public  use,  or  a  natural  monopoly, 
the  company  cannot  act  capriciously  or  oppressively,  but  must  supply 
water  to  all  impartially  and  at  reasonable  rates,  and  an  injunction  will 
issue  to  prevent  the  cutting  off  the  water  suppl}'  where  the  customer 
offers  to  pa}'  a  reasonable  rate  and  the  company  demands  an  unrea- 
sonable one."  2  Beach  Pri.  Corp.,  Section  834  (c)  ;  Munn  v.  Illinois, 
supra  ;  Lumbard  v.  Stearns,  4  Cush.  60.  In  the  29  A.  &  E.  Enc.  19, 
it  is  said  :  "  The  acceptance  by  a  water  company  of  its  franchise  car- 
ries with  it  the  duty  of  supplying  all  persons  along  the  lines  of  its 
mains,  without  discrimination,  with  the  commodit}^  which  it  was  organ- 
ized to  furnish.  All  persons  are  entitled  to  have  the  same  service  on 
equal  terms  and  at  uniform  rates."  If  this  were  not  so,  and  if  cor- 
porations existing  by  the  grant  of  public  franchises  and  supplying  the 
great  conveniences  and  necessities  of  modern  city  life,  as  water,  gas, 
electric  light,  street  cars,  and  the  like  could  charge  an}'  rates  however 
unreasonable,  and  could  at  will  favor  certain  individuals  with  low  rates 
and  charge  others  exorbitantly  high  or  refuse  service  altogether,  the 
business  interests  and  the  domestic  comfort  of  every  man  would  be  at 
their  mercy.  They  could  kill  the  business  of  one  and  make  alive  that 
of  another  and  instead  of  being  a  public  agency  created  to  promote 
the  public  comfort  and  welfare  these  corporations  would  be  the  mas- 
ters of  the  cities  they  were  established  to  serve.  A  few  wealthy  men 
might  combine  and,  by  threatening  to  establish  competition,  procure 
very  low  rates  which  the  company  might  recoup  by  raising  the  price 
to  others  not  financially  able  to  resist — the  ver}'^  class  which  most 
needs  the  protection  of  the  law  —  and  that  very  condition  is  averred 
in  this  complaint.  The  law  will  not  and  cannot  tolerate  discrimina- 
tion in  the  charges  of  these  quasi-public  corporations.  There  must  be 
equality  of  rights  to  all  and  special  privileges  to  none,  and  if  this  is 
violated,  or  unreasonable  rates  are  charged,  the  humblest  citizen  has 
the  right  to  invoke  the  protection  of  the  laws  equally  with  any 
other. 

While  the  defendant  cannot  charge  more  than  the  rates  stipulated 
in  the  ordinance  granting  it  the  franchise,  because  granted  upon  that 
condition,  those  rates  are  not  binding  upon  consumers  who  have  a 
right  to  the  protection  of  the  courts  against  unreasonable  charges. 
Since  the  Constitution  of  1868,  Article  VIII,  Section  1,  if  the  rates  had 
been  prescribed  in  a  charter  granted  b}'  the  Legislature,  they  would  be 
subject  to  revocation,  and  indeed  independently  of  that  constitutional 


538        COMMONWEALTH   V.   DELAWARE   AND   HUDSON,   ETC.   CO. 

provision,  Stone  v.  Farmer's  Co.,  116  U.  S.  307 ;  R.  Co.  v.  Miller,  132 
U.  S,  75;  Chicago  v.  Munn,  134  U.  S.  418;  Georgia  v.  Smith,  70  Ga. 
694 ;  Winchester  v.  Croxton,  98  Ky.  739,  still  less  can  these  rates 
bind  consumers  (if  unreasonable  or  discriminating)  since  the  town  had 
authority  to  grant  the  franchise  but  not  to  stipulate  for  rates  binding 
upon  the  citizens.  The  Legislature  did  not  confer  that  power.  The 
rates  are  binding  upon  the  company  as  a  maximum  simply  because 
acting  for  itself  it  had  the  power  to  accept  the  franchise  upon  those 
conditions. 

The  allegations  of  fact  that  the  rates  are  unreasonable  and  oppres- 
sive are  denied.  That  they  are  not  uniform  is  not  denied  and  the  de- 
fendant contended  that  it  had  the  right  to  discriminate,  which  cannot 
be  sustained.  On  the  final  hearing  the  cost  and  value  of  the  propert}' 
will  be  material  in  determining  as  to  the  reasonableness  of  the  rates 
charged.  Smyth  v.  Ames  (known  as  the  "Nebraska  Case"),  U.  S. 
Supreme  Court,  1898.  The  evidence  offered  on  that  point  on  the  hear- 
ing below  is  not  satisfactory,  the  mere  amount  of  mortgage  bonds 
issued  on  the  property  being  no  reliable  guide  to  the  courts  as  to  the 
true  value  of  the  investment.  It  may  be,  as  sometimes  happens,  that 
the  bonds  and  stocks  are  watered.  Nor  is  the  evidence  of  the  cost  of 
construction  and  operation  conclusive,  as  has  often  been  held,  for  it 
ma}'  be  that  the  work  was  extravagant!}'  constructed  or  is  operated 
under  inefficient  management  and  the  public  are  not  called  on  to  pa}' 
interest  upon  such  expenditures,  in  the  shape  of  unreasonable  or  ex- 
tortionate rates.  Missouri  v.  Smith,  60  Ark.  221  ;  Chicago  v.  Well- 
man,  143  U.  S.  339  ;  Livingstone  v.  Sanford,  164  U.  S.  578. 

The  court  below  properly  continued  the  cause  to  the  hearing. 

JVb  error. 


COMMONWEALTH    v.    THE     DELAWARE    AND    HUDSON 
CANAL  CO.  AND  PENNSYLVANIA  COAL  CO. 

Supreme  Court  of  Pennsylvania,  1862. 

[43  Pa.  St.  295.1] 

The  agreement  referred  to  in  the  information,  after  reciting  amongst 
other  things,  in  substance  and  effect,  that  it  was  not  for  the  interest 
of  the  canal  company  that  the  surplus  capacity  of  its  canal  for  trans- 
portation should  remain  unemployed  ;  that  no  company  would  prudently 
undertake  to  construct  a  '*  railway  connecting  with  it  without  a  cer- 
tainty of  being  allowed  to  transport  thereon  at  a  permanent  rate  of 
tolls ;  that  with  a  view  to  induce  capitalists  to  invest  their  funds  in  the 
construction  of  a  railroad  to  be  connected  with  the  canal,  the  company 
had  offered  a  permanent  tariff  of  tolls  on  all  coal  entering  the  canal  on 
any  such  railroad ;  provides  that  the  canal  company  will  at  all  times 

1  This  case  is  abridged.  —  Ed. 


COMMONWEALTH   V.   DELAWARE   AND   HUDSON,   ETC.   CO.         539 

hereafter  furnish  to  any  and  all  boats  owned  or  used  b\'  the  "Wyoming 
Coal  Association  for  the  time  being,  or  its  assigns,  for  the  purpose  of 
transporting  coal  entering  the  canal  b}'  railroads  connecting  with  the 
canal,  &c.,  «S;c.,  all  the  facilities  of  navigation  and  transportation 
which  the  canal  shall  afford,  when  in  good  and  navigable  condition  and 
repair,  to  boats  owned  or  used  by  any  other  company  or  persons,  or 
belonging  to  or  used  by  or  containing  coal  transported  for  the  canal 
company,  charging  and  collecting  a  toll  on  the  coal  at  a  rate  per  ton  to 
be  established  in  the  manner  following,  viz.  :  On  the  1st  day  of  May 
in  each  and  every  calendar  year  the  quantity  of  lump  coal  of  the  said 
Delaware  and  Hudson  Canal  Company,  which  shall  at  that  time  have 
been  sold  to  be  delivered  at  Rondout,  and  to  arrive  b}'  the  said  canal 
during  the  said  calendar  j'ear,  shall  be  ascertained,  and  the  average 
price  at  which  such  sales  have  been  contracted,  shall  also  be  ascer- 
tained, and  from  the  average  price  thus  ascertained,  $2.50  shall  be 
subtracted,  and  one-half  of  the  remainder  shall  be  the  toll  per  ton 
during  such  calendar  year,  except  that  if  any  discount  or  deduction, 
contingent  or  otherwise,  shall  be  agreed  upon  or  contemplated  in  the 
contracts  for  such  sales,  the  said  toll  shall  be  reduced  correspondingly 
to  such  discount  or  deduction  as  shall  be  actually  made.  But  provided, 
nevertheless,  that  if  on  the  1st  day  of  Ma}-,  in  any  calendar  3'ear,  the 
quantit}'  of  lump  coal  of  the  said  Delaware  and  Hudson  Canal  Com- 
pany, which  shall  at  that  time  have  been  sold  as  aforesaid,  shall  be  less 
than  one-half  the  estimated  sales  for  such  3'ear,  the  toll  during  such 
year  shall  be  calculated  in  the  manner  hereinbefore  provided  on  the 
average  price  at  which  the  sales  of  lump  coal  for  such  year  shall  be 
actually  made  ;  and  if  in  any  calendar  3'ear  no  sales  of  the  coal  of  the 
Delaware  and  Hudson  Canal  Compan3'  shall  be  made,  then  and  in  that 
case  the  toll  during  such  year  shall  be  calculated  on  the  sales  for  such 
3'ear  of  the  lump  coal  of  the  W3'oming  Coal  Association  for  the  time 
being,  or  its  assigns,  in  the  manner  hereinbefore  provided  for,  calcu- 
lating the  toll  on  the  sales  of  the  said  Delaware  and  Hudson  Canal 
Compan3'.  And  in  case  of  an  enlargement  of  the  said  canal,  the  said 
president,  managers,  and  compan3',  and  their  successors  and  assigns, 
may  also  charge  and  collect  an  additional  toll  on  the  coal  transported 
in  pursuance  of  this  agreement,  at  a  rate  per  ton  of  2,240  pounds,  to  be 
established  after  the  completion  of  the  said  enlargement,  in  the  manner 
following,  viz. :  The  cost  of  transportation  per  ton  on  the  said  canal, 
between  the  points  at  which  such  coal  shall  enter  the  said  canal  and 
the  point  on  the  Rondout  creek,  at  which  the  said  canal  meets  tide- 
water, after  the  full  effect  of  all  the  improvements  previous  to  the  said 
enlargement  shall  have  been  experienced,  shall  be  fairl3'  ascertained  or 
established ;  the  cost  of  transportation  per  ton  on  the  said  canal 
between  those  points  after  the  said  enlargement  shall  have  been  com- 
pleted shall  also  be  fairl3'  ascertained  or  estimated,  and  one-half  of 
such  portion  of  the  reduction  in  the  cost  of  transportation  per  ton  on 
the  said  canal  between  these  points  as  shall  be  estimated  to  have 


540        COMMONWEALTH   V.   DELAWARE  AND   HUDSON,  ETC.   CO. 

been  produced  by  the  said  enlargement,  and  by  no  other  cause,  shall 
be  the  additional  toll  per  ton  to  be  thereafter  permanently  charged." 

The  contract  then  provides  that  until  such  enlargement  the  canal 
company  shall  not  be  bound  to  allow  over  400,000  tons  to  be  trans- 
ported over  the  canal  in  any  one  season,  and  that  after  such  enlarge- 
ment it  shall  not  be  bound  to  allow  such  quantity  to  be  increased  so  as 
to  exceed  in  any  one  season  "  one-half  of  the  whole  capacity  for  trans- 
portation of  the  said  canal,  exclusive  of  the  tonnage  employed  in  the 
transportation  of  articles  other  than  coal,"  and  the  main  question  was, 
whether  this  agreement,  made  on  the  31st  da}'  of  August,  1847,  be- 
tween the  canal  company  and  the  W^'oraing  Coal  Association,  and  re- 
newed with  the  Pennsylvania  Coal  Company,  was  in  excess  of  the 
legitimate  power  of  said  parties. 

The  defendants  were  not  agreed  as  to  the  validity  of  the  contract, 
the  Hudson  Canal  Company  insisting  that  it  was  and  is  contrar}'  to 
law,  while  the  coal  company  claimed  that  it  is  a  valid  and  binding 
agreement  as  between  the  parties.  Separate  answers  to  the  information 
were  filed  by  the  defendants,  but  as  the  objections  to  the  agreement 
are  all  contained  in  the  answers  of  the  canal  company,  and  are  suffi- 
ciently stated  in  the  opinion  of  this  court,  it  is  unnecessary  to  repeat 
them  here. 

LowRiE,  C.  J.  .  .  The  information  alleges  that  the  agreement  in 
controversy  is  in  excess  of  the  legitimate  power  of  these  corporations, 
and  prays  that  it  may  be  so  declared  by  this  court,  and  that  the 
defendant  may  be  enjoined  from  acting  under  it,  and  also  that  they 
ma}'  be  required  to  appear  and  consent  to  or  refuse  its  cancellation, 
and  for  such  other  decree  as  may  be  agreeable  to  equity.  The  infor- 
mation would  have  been  formally  and  substantially  improved  if  it  had 
specially  suggested  wherein  the  agreement  is  in  violation  of  the 
corporate  rights  of  the  defendants.  But  we  may  treat  this  defect  as 
supplied  by  the  answers  of  the  defendants. 

The  defendants  have  got  into  a  quarrel  among  themselves  about  the 
agreement,  and  the  canal  company  confesses  and  claims  that  the 
agreement  is  contrary  to  law,  while  the  coal  company  insists  that  it  is 
not,  and  claims  that  it  shall  stand  as  the  bond  and  law  of  the  relations 
between  the  parties.  It  is  therefore  in  the  answer  of  the  canal  com- 
pany that  we  find  the  objections  to  the  contract  specified,  and  we 
proceed  to  consider  them. 

1.  It  is  objected  that  the  agreement  grants  to  the  coal  company  a 
monopoly  of  the  one-half  of  the  capacity  of  the  canal  of  the  other 
party,  to  the  exclusion  of  the  public,  because  it  contracts  to  furnish  to 
the  coal  company  all  the  facilities  of  navigation  which  the  canal  will 
afford,  not  exceeding  one-half  of  its  whole  capacity,  inclusive  of  the 
tonnage  employed  in  the  transportation  of  articles  other  than  coal. 

This  leaves  to  all  property  other  than  coal  its  full  right  of  transpor- 
tation on  the  canal ;  but  it  does  profess  to  give  the  coal  company  a 
right,  as  against  other  carriers  of  coal,  to  a  preference  to  the  extent  of 


COMMONWEALTH   V.   DELAWARE   AND   HUDSON,  ETC.   CO.        541 

one-half  the  capacity  of  the  canal.  And  this  ma}*  be  wrong  if  it 
interferes  with  the  claims  of  others  to  have  their  coal  carried  as 
cheapl}'  and  speedily  as  that  of  the  coal  corapan}'.  But  there  is 
no  complaint  that  anybod}'  has  been  wronged  by  this,  or  that  either 
company  has  by  this  actually  exercised  any  function  that  is  exclusive 
of  the  public  right.  When  the  defendants  do  in  fact  transgress  the 
limits  of  their  legitimate  functions  and  interfere  with  the  public  rights, 
then  will  be  the  time  to  bring  a  charge  against  them.  A  mere  intention 
or  contract  to  allow  an  act  that  may  be  wrong,  is  no  ground  for  an 
information  in  law  or  equity  in  the  nature  of  the  quo  warranto. 

2.  It  is  objected  that  the  agreement,  instead  of  fixed  tolls  to  be  col- 
lected at  the  locks  according  to  the  charter  of  the  canal  company, 
provides  for  a  rate  of  toll  to  be  ascertained  by  the  market  price  of 
coal  in  every  year,  and  thus  the  rate  of  toll  remains  uncertain  until 
this  price  is  ascertained,  and  it  cannot  therefore  be  demanded  at  the 
locks,  and  may,  in  certain  states  of  the  coal  market,  exceed  the  toll 
allowed  b}'  the  charter. 

We  do  not  see  that  this  objection  involves  any  public  grievance. 
The  canal  company  has  a  right  to  commute  its  tolls  ;  and  we  cannot 
see  that  the  public  has  any  interest  in  objecting  that  it  ma}'  get  too 
much,  under  the  contract  of  commutation,  in  a  certain  contingency,  or 
that  it  has  contracted  away  part  of  its  means  of  obtaining  the  little 
that  it  agrees  to  accept  under  the  contract.  At  all  events,  the  agree- 
ment is,  by  itself,  no  actual  transgression  of  proper  functions. 

3.  But  the  above  objection  is  repeated  on  behalf  of  the  public ;  that, 
on  account  of  the  uncertainty  of  the  toll,  the  canal  company  cannot 
always  know  how  much  to  demand  of  others,  and  therefore  cannot  do 
equal  justice  to  all  according  to  its  public  duty  as  a  canal  company. 
12  Harris,  138  ;  10  M.  &  W.  398. 

But  we  find  no  averment  or  pretence  that  the  public  or  any  private 
person  has  suffered  any  wrong  by  reason  of  this,  or  that  the  canal 
company  has  been  compelled,  in  obeying  this  part  of  the  contract,  to 
exercise  any  functions  that  do  not  properly  belong  to  it  as  a  canal 
company.  If  it  really  means  to  be  honest  towards  the  public,  we 
doubt  not  that  it  will  be  able  to  discover  some  such  reasonable  rule  of 
equality  ih  dealing  with  other  carriers  that  the  public  will  have  no 
reasonable  ground  of  complaint.  Exact  equality  is  not  demanded, 
but  such  a  reasonable  approximation  to  it  as  can  be  secured  by  reason- 
able general  rules,  free  from  mere  arbitrariness. 

4.  It  is  objected  that  because  the  tolls  are  fixed  at  half  the  proceeds 
of  the  coal  after  deducting  the  estimated  costs  of  the  production, 
therefore  the  canal  company  is  a  speculative  dealer  in  coal,  which  is  a 
departure  from  the  purposes  of  its  creation. 

We  do  not  perceive  that  the  conclusion  follows  from  the  premises. 
Measuring  toll  by  the  profits  on  the  article  when  sold,  is  not  becoming 
a  dealer  in  coal,  else  government  would  be  a  dealer  in  articles  that  are 
subjected  to  an  ad  valorem  tariff.     It  is  very  common  for  the  State  to 


542        COMMONWEALTH   V.   DELAWARE  AND   HUDSON,  ETC.   CO. 

measure  taxes  according  to  supposed  profits,  and  we  find  no  public 
wrong  in  the  canal  company  doing  so  in  its  contract  of  commutation 
of  toUs. 

5.  It  is  objected  that  such  a  contract,  to  be  valid,  ought  to  have  the 
sanction  of  the  Legislature,  because  it  affects  the  interest  and  income 
of  the  State. 

But  it  is  not  any  way  shown  to  us  that  it  does  so.  Nothing  like 
this  is  averred  in  the  information,  and  of  course  we  cannot  assume  it. 
If  either  of  these  corporations  do  anything  under  the  contract  to  the 
interest  and  income  of  the  State,  and  contrary  to  its  charter,  and  this 
be  sliown  to  us  in  any  regular  manner,  we  shall  probably  interfere  and 
correct  it.  But  we  can  do  nothing  arbitraril}'.  We  must  have  some 
definite  allegation  and  proof  of  usurpation  before  we  can  do  anything. 
The  allegation  of  mere  probabilities  of  wrong  raises  no  question  for 
our  interference. 

6.  It  is  objected  that,  since,  under  the  contract,  the  tolls  are 
measured  by  the  profits,  the  coal  company  has  the  power  by  sacrificing 
the  regular  profits  or  a  portion  of  them,  to  control  the  coal  market,  and 
may  at  its  pleasure  so  depress  the  price  as  to  ruin  man}*  of  those 
engaged  in  the  trade,  and  greatly  disturb  the  public  interest  without 
any  serious  injury  to  itself,  and  that  it  did  so  last  spring. 

If  this  had  been  averred  in  the  information,  and  proved  as  one  of 
the  grounds  of  the  complaint  against  the  agreement,  we  should  have 
regarded  it  as  the  most  serious  one  of  all  those  that  have  been  urged ; 
but  it  is  neither  alleged  nor  proved  by  the  Commonwealth.  And  we 
incline  to  think  that  it  is  properly  so,  for  it  seems  to  us  that  this  objec- 
tion is  founded  rather  on  the  abuse  of  the  agreement  than  on  the 
nature  of  it,  and  that  the  remed}'  ought  to  be  compensation  under  the 
equity,  if  not  the  letter,  of  the  agreement,  rather  than  cancellation 
of  it. 

Nothing  can  be  more  obvious  than  that  the  parties  intended  to  adopt 
a  standard  by  which  the  tolls  were  to  be  indirectly  measured.  But  that 
can  be  no  standard  that  may  be  controlled  entirely  by  the  will  of  either 
party,  and  neither  can  be  supposed  to  have  intended  such  a  measure  of 
value.  They  both  meant  to  fix  a  standard  independent  of  themselves, 
and  in  the  public  market  where  we  look  for  the  natui*al  standard  of 
value.  Both  of  them,  as  dealers  in  the  market,  would  have  an  influence 
in  fixing  the  market  price,  and  therefore  the  standard  ;  but  neither  of 
them,  dealing  according  to  the  fair  laws  of  the  trade  and  of  competi- 
tion in  it,  could  control  this  standard  or  would  attempt  to  do  it.  That 
is  a  standard  that  may  well  be  appealed  to,  because  it  is  never  merely 
arbitrary,  and  in  trade  and  in  law  it  is  constantly  appealed  to. 

These  parties  are  large  dealers  in  coal,  and  therefore  their  sales  are, 
by  the  agreement,  to  be  taken  as  a  means  of  ascertaining  the  market 
price,  and  not  for  the  purpose  of  giving  either  of  them  the  power  to 
fix  that  price,  or  with  the  thought  that  either  of  them  might  do  so.  If 
they  arbitrarily  use  their  power  to  change  the  standard,  they  necessarily 


HOOVER   V.    PENNSYLVANIA   RAILROAD  CO.  543 

destroy  its  authority  as  a  standard  as  in  their  favor ;  for  it  is  not  their 
will,  but  the  fair  market  price  that  is  appealed  to. 

We  are  not  entitled  in  this  case  to  inquire  how  far  a  trading  corpo- 
ration is  liable  to  control  or  punishment  for  recklessly  raising  or 
depressing  prices,  for  our  sole  inquiry  is  concerning  the  legality  of  this 
agreement.  We  cannot  discover  any  such  illegality  in  it  as  would 
justify  us  in  directing  its  cancellation.  Some  of  the  allegations  of  the 
canal  company  seem  to  show  a  great  abuse  of  the  agreement  by  the 
coal  company,  but  the  information  is  in  no  degree  grounded  on  that, 
and  we  cannot  inquire  of  it,  and  we  must  volunteer  no  opinion  as  to 
the  fact  or  its  consequences  or  remedy. 

Information  dismissed} 


HOOVER  V.   PENNSYLVANIA  BAILROAD  CO. 
Supreme  Court  of  Pennsylvania,  1893. 

[156  Pa.  St.  220.2] 

Trespass  for  dam^es  for  alleged  unlawful  discrimination. 

At  the  trial,  before  Furst,  P.  J.,  it  appeared  that,  in  1881,  the  defend- 
ant agreed  to  transport  coal  from  the  Snow  Shoe  district  to  the  works 
of  the  Bellefonte  Iron  &  Nail  Company  for  the  sum  of  thirt}'  cents  per 
ton,  provided  the  nail  company  consumed  at  least  twenty  tons  per  day. 
It  appeared  that  the  coal  was  to  be  tariffed  at  the  usual  public  rate  of 
fifty  cents  per  ton,  and  that  a  rebate  of  twenty  cents  per  ton  net  would 
be  repaid  by  the  railroad  company  to  the  nail  company.  In  1889, 
plaintiffs  became  retail  coal  dealers  in  Bellefonte,  and  were  charged  by 
the  railroad  company  the  usual  public  rate  for  the  transportation  of 
their  coal. 

Mr.  Justice  Green.  .  .  .  Let  us  now  see  what  is  the  voice  of  the 
authorities  upon  the  subject  of  discriminations  in  freight  charges  by 
carrying  companies.  The  subject  is  an  old  one.  Prior  to  any  statutes 
in  England  or  in  this  country,  the  common  law  had  pronounced  upon 
the  rights  and  duties  of  carriers  and  freighters,  and  in  the  enactment  of 
statutes  little  more  has  been  done  than  to  embody  in  them  the  well- 
known  principles  of  the  common  law.  It  happens,  somewhat  singu- 
larly, that  the  very  question  we  are  now  considering,  of  a  discrimina- 
tion in  the  rates  charged  to  coal  dealers  and  to  manufacturers  who  use 
coal  as  a  fuel,  does  not  appear  to  have  arisen.  And  yet  it  is  very 
certain  that  such  discrimination  does  prevail,  and  has  prevailed  for  a 
long  time  on  all  lines  of  railway  and  canal.  It  is  highly  probable  that 
the  absence  of  litigation  upon  such  discrimination  is  due  to  the  general 

1  Compare:  Union  Pacific  Co.  i-.  Goodridge,  149  U.  S.  680.  — Ed. 
'  Thia  case  is  abridged.  —  Ed. 


544  HOOVER   V.   PENNSYLVANIA   RAILROAD   CO. 

sentiment  of  its  fairness  and  justness.  Within  the  writer's  knowledge 
in  the  section  of  the  State  in  which  he  lives,  a  much  greater  difference 
between  the  rates  charged  to  dealers  and  those  charged  to  manufac- 
turers b}'  the  coal-carrying  companies  has  always  existed  and  now 
exists,  without  an}-  question  as  to  its  justness  or  its  legalit}'.  It  is 
matter  of  public  history-  that  along  the  valleys  of  the  Lehigh  and  the 
Schuylkill  there  are  great  numbers  of  blast  furnaces,  rolling  mills,  rail 
mills,  foundries,  machine  shops,  and  numerous  other  manufacturing 
establishments  which  consume  enormous  quantities  of  the  coal  output 
of  the  State,  and  at  the  same  time  in  every  village,  town,  and  citv 
which  abound  in  these  regions,  an  immensely  large  industry  in  the 
buying  and  selling  of  coal  for  domestic  consumption  is  also  prosecuted. 
And  what  is  true  of  the  eastern  end  of  the  State  is  without  doubt 
equally  true  throughout  the  interior  and  western  portions  of  the 
Commonwealth,  where  similar  conditions  prevail.  Yet  from  no  part 
of  our  great  State  has  ever  yet  arisen  a  litigation  which  called  in 
question  tlie  legalit}',  or  the  wisdom,  or  the  strict  justice  of  a  discrim- 
ination favorable  to  the  manufacturing  industries  as  contrasted  with 
the  coal-selling  industries.  This  fact  can  scarcely  be  accounted  for 
except  upon  the  theory  that  such  discrimination,  as  has  thus  far  trans- 
pired, has  not  been  felt  to  be  undue,  or  unreasonable,  or  contrary  to 
legal  warrant.  In  point  of  fact  it  is  perfectly  well  known  and  appre- 
ciated that  the  output  of  freights  from  the  great  manufacturing 
centres  upon  our  lines  of  transportation  constitutes  one  of  the  chief 
sources  of  the  revenues  which  sustain  them  financiall}'.  Yet  no  part 
of  this  income  is  derived  from  those  who  are  mere  bu3ers  and  sellers 
of  coal.  When  the  freight  is  paid  upon  the  coal  they  bu}',  the  revenue 
to  be  derived  from  that  coal  is  at  an  end.  Not  so,  however,  with  the 
revenue  from  the  coal  that  is  carried  to  the  manufacturers.  That  coal 
is  consumed  on  the  premises  in  the  creation  of  an  endless  variet}'  of 
products  which  must  be  put  back  upon  the  transporting  lines,  en- 
hanced in  bulk  and  weight  b}*  the  otlier  commodities  which  enter  into 
the  manufactured  product,  and  is  then  distributed  to  the  various 
markets  where  they  are  sold.  In  addition  to  this,  a  manufacturing 
plant  requires  other  commodities  besides  coal  to  conduct  its  operations, 
whereas  a  coal  dealer  takes  nothing  but  his  coal,  and  the  freight  derived 
by  the  carrier  from  the  transportation  of  these  commodities  forms  an 
important  addition  to  its  traffic,  and  constitutes  a  condition  of  the 
business  which  has  no  existence  in  the  business  of  carrying  coal  to 
those  who  are  coal  dealers  only.  Thus  a  blast  furnace  requires  great 
quantities  of  iron  ore,  limestone,  coke,  sand,  machiner}',  lumber,  fire 
bricks,  and  other  materials  for  the  maintenance  of  its  structures  and 
the  conduct  of  its  business,  none  of  which  are  necessary  to  a  mere 
coal-selling  business.  These  are  some  of  the  leading  considerations 
which  establish  a  radical  difference  in  the  conditions  and  the  circum- 
stances which  are  necessarily  incident  to  the  two  kinds  of  business  we 
are  considering.     Another  important  incident  which  distinguishes  them 


BAILY  V.   FAYETTE   GAS-FUEL   CO.  545 

is  that  the  establishment  of  manufacturing  industries,  and  the  conduct- 
ing of  their  business,  necessitates  the  eraploj'ment  of  numbers  of  work- 
men and  other  persons  whose  services  are  needed,  and  these,  with 
their  families,  create  settlements  and  new  centres  of  population,  re- 
sulting in  villages,  towns,  boroughs,  and  cities,  according  to  the  extent 
and  variety  of  the  industries  established,  and  all  these,  in  turn,  furnish 
new  and  additional  traffic  to  the  lines  of  transportation.  But  nothing 
of  this  kind  results  from  the  mere  business  of  coal  selling.  In  fact 
that  business  is  one  of  the  results  of  the  manufacturing  business  and  is 
not  co-ordinate  with  it.  The  business  of  the  coal  dealer  is  promoted 
by  the  concentration  of  population  which  results  from  the  establish- 
ment of  manufacturing  industries,  and  these  two  kinds  of  business  are 
not  competitive  in  their  essential  characteristics,  but  naturalh'  proceed 
together,  side  by  side,  the  coal  selling  increasing  as  the  manufacturing 
increases  in  magnitude  and  extent.  Judgment  for  defendant.^ 


BAILY  V.  FAYETTE  GAS-FUEL  CO. 
Supreme  Court  of  Pennsylvania,  1899. 

[193  Pa.  St.  175.] 

On  September  21,  23,  and  24,  1898,  the  defendant  company  caused 
to  be  inserted  in  the  Daily  News  Standard,  published  in  Uniontown,  an 
advertisement,  notifying  domestic  consumers  of  natural  gas  that  after 
October  1,  1898,  the  rates  for  gas  would  be  as  follows:  For  heat, 
twent3"-five  cents  per  1,000  cubic  feet;  for  light,  $1.50  per  1,000  cubic 
feet ;  and  requiring  all  consumers  desiring  to  use  gas  for  light  to  notifj' 
the  company  immediately  that  the  light  meters  might  be  set.  At  or 
about  the  same  time  similar  notices  were  mailed  to  the  compan3's 
customers.  The  plaintiff,  a  resident  of  Uniontown,  saw  the  notice  as 
published  and  also  received  one  by  mail.  On  or  about  October  3, 
1898,  an  employee  of  the  defendant  company'  notified  the  plaintiff 
orally  that  if  he  did  not  call  immediatel\-  at  the  defendant's  office  and 
make  arrangements  for  using  the  gas  for  ilUiraination  the  gas  would 
be  shut  off,  whereupon  the  plaintiff  filed  the  bill  in  this  case,  alleging 
that  the  proposed  difference  in  charge  for  gas  used  for  illuminating  and 
heating  purposes  is  an  unjust  and  unlawful  discrimination,  and  an  un- 
reasonable regulation,  not  made  in  good  faith,  but  for  the  benefit  of 
other  corporations  ;  that  the  proposed  action  of  the  defendant  would 
be  a  violation  of  the  plaintiff's  rights  and  the  defendant's  duties  and 
would  work  a  continuous  and  irreparable  injury  to  the  plaintiflT,  and 
praying  that  the  defendant  be  restrained  from  shutting  off  plaintifl^s 

1  Contra :  Hilton  Lumber  Co.  v.  Atlantic  Coast  Line,  53  S.  E,  823.  —  Ed. 

35 


546  BAILT  V.   FAYETTE   GAS-FUEL   CO. 

supplj'  of  natural  gas  and  from  any  interference  with  the  connec- 
tion between  its  mains  or  supply  pipe  and  plaintiff's  premises,  which 
would  prevent  him  from  using  natural  gas  for  either  heating  or  illumi- 
nating purposes,  so  long  as  the  plaintiff  continues  to  pay  the  usual 
rates  charged  generally  for  gas,  without  discriminating  as  to  the  uke 
thereof  for  illuminating  purposes,  &c. 

Mitchell,  J.  The  defendant  company  was  chartered  under  the  Act 
of  May  29,  1885,  P.  L.  29,  to  produce,  transport,  supply,  &c.,  natural 
gas  for  heat,  light,  or  other  purposes.  It  has  been  supplying  the  gas 
for  both  heat  and  light,  and  proposes  to  continue  doing  so,  but  upon 
terms  making  a  difference  in  price  according  to  the  use  to  which  the 
gas  is  put  by  the  consumer.  The  question  now  before  us  is  the  reason- 
ableness of  this  regulation. 

In  his  opinion  the  learned  judge  below  said,  "  So  far  as  concerns 
this  case  the  defendant  companj-  may  be  regarded  as  incorporated  for 
the  purpose  of  supplying  natural  gas  to  consumers  for  heat  and  light." 
Not  only  did  its  charter  powers  cover  both  uses,  but  as  already-  said 
its  actual  operation  has  included  both,  and  it  is  not  intended  now  to 
abandon  either,  even  if  that  could  be  done.  The  corporate  powers  are 
the  measure  of  corporate  duties. 

The  gas  is  brought  by  the  company  through  the  same  pipes  for  both 
purposes  and  delivered  to  the  customers  at  the  same  point,  the  curb. 
Thence  it  goes  into  pipes  put  in  by  the  consumer,  and,  after  passing 
through  a  meter,  is  distributed  bj-  the  customer  through  his  premises 
according  to  his  own  convenience.  The  regulation  in  question  seeks 
to  differentiate  the  price  according  to  the  use  for  heating  or  for  light. 
It  is  not  claimed  that  there  is  any  difference  in  the  cost  of  the  product 
to  the  companj-,  the  expense  of  supplying  it  at  the  point  of  delivery  or 
its  value  to  the  company  in  the  increase  of  business  or  other  ways. 
Some  effort  was  made  to  show  increased  risk  to  the  company  from  the 
use  of  gas  for  lighting  purposes,  but  the  evidence  of  danger  was  so  re- 
mote and  shadowy  that  it  cannot  be  considered  as  more  than  a  mere 
makeweight.  The  real  argument  seeks  to  justify  the  difference  in  price 
solely  by  the  value  of  the  gas  to  the  consumer,  as  measured  b}'  what 
he  would  have  to  pay  for  a  substitute  for  one  purpose  or  the  other 
if  he  could  not  get  the  gas.  This  is  a  whoUj*  inadmissible  basis  of  dis- 
crimination. 

The  implied  condition  of  the  grant  of  all  corporate  franchises  of 
even  quasi-public  nature  is  that  thej-  shall  be  exercised  without  indi- 
vidual discrimination  in  behalf  of  all  who  desire.  From  the  inception 
of  the  rules  applied  in  early  days  to  innkeepers  and  common  carriers 
down  to  the  present  day  of  enormous  growth  of  corporations  for  nearly 
every  conceivable  purpose,  there  has  been  no  departure  from  this  prin- 
ciple. And  from  all  the  legion  of  cases  upon  this  subject  the  distin- 
guished counsel  for  the  appellee  have  not  been  able  to  cite  a  single  one 
in  which  a  discrimination  based  solely  on  the  value  of  the  service  to 
the  customer  has  been  sustained.     Hoover  v.  Penna.  R.  Co.,  156  Pa. 


LADD   V.   BOSTON.  547 

220,  was  much  relied  on  b}'  the  court  below,  but  was  decided  on  a  very 
different  principle.  That  was  an  action  for  damages  for  unlawful  dis- 
crimination b}-  a  dealer  in  coal,  because  a  manufacturing  company  had 
been  allowed  a  rebate  on  coal  carried  to  it.  But  it  was  held  that  as 
the  rebate  was  allowed  in  consideration  of  a  minimum  of  coal  to  be 
carried  per  da}',  and  also  in  view  of  return  freight  on  the  product  of 
the  manufacturing  company,  it  was  not  an  unreasonable  discrimina- 
tion ;  in  other  words,  that  the  company'  might  look  for  its  compensation 
not  onl}'  to  the  actual  money  freights  from  present  service,  but  also  to 
increased  business  to  grow  out  of  the  establishment  of  a  new  industry 
in  that  place.  So  also  Phipps  v.  London  &  North  Western  Rj-.  Co., 
L.  R.  1892,  2  Q.  B.  229,  cited  for  appellee,  where  the  decision  was 
put  upon  the  right  of  the  railroad  to  make  special  rates  for  freights 
from  distant  points  which  otherwise  it  could  not  get  at  all.  Both  cases 
belong  to  the  numerous  class  of  discrimination  sustained  on  the  basis 
of  special  advantages  to  the  carrier,  not  the  customer. 

Decree  reversed^  injunction  directed  to  be  reinstated  and  made 
permanent.     Costs  to  be  paid  by  appellee. 


LADD  V.   BOSTON. 
Supreme  Court  op  Massachusetts,  1898. 

[170  Mass.  332.1] 

Bill  in  equity,  filed  December  31,  1896,  alleging  the  following  facts. 

The  plaintiff  is  the  owner  of  a  building  on  Pemberton  Square  in 
Boston,  and  the  defendant  supplies  the  water  to  be  used  therein.  The 
defendant  has  established,  and  still  continues,  fixture  rates  and  meter 
rates,  in  accordance  with  which  it  requires  water  takers  to  pay  for  the 
water  they  use.  Many  years  ago  the  defendant  put  a  water  meter  into 
the  building  owned  by  the  plaintiff,  and  has  maintained  the  same  there 
ever  since.  At  the  time  the  meter  was  put  in,  the  plaintiff,  relying 
upon  its  continuance,  supplied  his  building  very  liberally  with  water 
fixtures.  By  the  meter  rates,  the  water  used  in  the  building  amounts 
to  about  five  dollars  each  year,  but  the  plaintiff  has  always  paid  fifteen 
dollars  per  annum,  that  being  the  minimum  meter  rate. 

The  defendant  has  recently  adopted  a  policy  of  removing  all  meters 
where  it  would  receive  more  money  from  fixture  rates,  without  any  re- 
gard to  the  injustice  it  will  work  to  certain  water  takers.  In  accord- 
ance with  such  policy,  it  now  threatens  to  remove  said  meter  and  put  the 
building  upon  fixture  rates,  and  to  shut  off  the  water  unless  the  plaintiff 
allows  it  to  do  so.     By  fixture  rates  for  all  the  fixtures  in  the  building 

1  The  case  is  abridged.  —  Ed. 


548  LADD  V.   BOSTON. 

in  actual  use  the  plaintiflf  would  be  required  to  pay  about  one  hundred 
and  five  dollars  per  annum.  The  water  fixtures  in  the  building  cannot 
be  lessened  or  rearranged  without  verj*  great  expense,  and  in  no  way 
can  they  be  so  lessened  or  rearranged  as  to  make  the  fixture  rate  in 
any  sense  reasonable  for  the  quantity  of  water  used.  The  income  from 
the  building  has  largely  decreased  in  the  last  few  years,  and  is  not  suf- 
ficient to  warrant  the  payment  of  such  excessive  water  taxation. 

The  plaintiflf  has  suggested  to  the  defendant  that  the  minimum  meter 
rate  be  reasonably  increased  if  it  be  not  now  large  enough  to  be  just  to 
fixture-rate  water  takers,  and  he  has  offered  to  furnish  his  own  private 
meter  and  pay  for  repairs  on  the  same  if  he  could  thereby  continue  to 
enjo}'  meter  rates  ;  but  this  suggestion  has  been  declined,  and  this  offer 
refused.  If  the  building  is  placed  upon  fixture  rates,  the  plaintiff  will 
be  obliged  to  pay  more  than  twenty  times  as  much  as  other  water  takers 
pay  for  the  same  quantity  of  water. 

Knowlton,  J.  .  .  .  Considerable  discretion  in  determining  the 
methods  of  fixing  rates  is  necessaril}*  given  by  the  statute  to  the  water 
commissioner.  Money  must  be  obtained  from  water  takers  to  reim- 
burse the  cit}'  wholly  or  in  part  for  the  expense  of  furnishing  water. 
An  equitable  determination  of  the  price  to  be  paid  for  supplying  water 
does  not  look  alone  to  the  quantity  used  by  each  water  taker.  The 
nature  of  the  use  and  the  benefit  obtained  from  it,  the  number  of  per- 
sons who  want  it  for  such  a  use,  and  the  effect  of  a  certain  method  of 
determining  prices  upon  the  revenues  to  be  obtained  b}'  the  city,  and 
upon  the  interests  of  property -holders,  are  all  to  be  considered.  Under 
any  general  and  uniform  system  other  than  measuring  the  water,  some 
will  pay  more  per  gallon  than  others. 

It  appears  by  the  bill  that  the  plaintiflf  has  so  arranged  fixtures  in 
bis  building  that  he  and  his  tenants  can  obtain  the  convenience  and 
benefit  of  having  water  to  use  in  many  places,  while  the  quantity  which 
they  want  to  use  in  the  whole  building,  paid  for  at  the  rate  per  gallon 
charged  for  measured  water,  would  cost  onlj'  five  dollars  per  year.  He 
has  been  accustomed  to  pa}'  fifteen  dollars  per  year,  because,  however 
small  the  quantit}'  used,  that  is  the  lowest  sum  per  year  for  which  water 
will  be  furnished  under  the  rules  through  any  meter. 

The  only  averment  in  the  bill  which  tends  to  show  that  the  charge 
for  his  building  after  the  meter  is  removed  will  be  unreasonable,  is  that 
he  "  will  be  obliged  to  pay  more  than  twenty  times  as  much  as  other 
water  takers  pay  for  the  same  quantity  of  water."  This  means  that 
the  arrangement  of  fixtures  in  his  building  is  such  that,  paying  by  the 
fixture  at  the  ordinary  rate,  the  aggregate  quantity  used  will  be  so 
small  as  to  make  the  price  per  gallon  twenty  times  as  much  as  the 
price  paid  for  measured  water  where  meters  are  allowed  to  be  used,  or 
the  lowest  price  paid  at  rates  by  the  fixture  where  the  largest  quantities 
are  used  through  the  fixtures.  This  does  not  show  that  charging  by 
the  fixture  is  an  improper  method.  It  only  shows  that  the  number  and 
arrangement  of  the  fixtures  in  the  plaintiff's  building  are  uneconomical 


STATE  EX  REL.  CUMBERLAND,  ETC.  CO.  V.  TEXAS,  ETC.  RAILROAD.     549 

for  the  owner  as  compared  with  a  different  construction  and  arrange- 
ment of  the  conveniences  for  using  water  in  some  other  buildings. 

The  rights  of  the  parties  are  not  affected  by  the  fact  that  the  plaintiff 
was  using  a  meter  when  he  put  in  his  fixtures.  He  knew  that  he  had 
no  contract  for  the  future  with  the  city  in  regard  to  the  mode  of  fixing 
the  price  to  be  paid  for  water,  and  it  appears  that  the  quantity  which 
he  has  been  using  is  only  about  a  third  of  the  smallest  quantity  for 
which  water  is  ever  charged  b}'  the  gallon,  running  through  a  meter. 

The  bill  does  not  state  a  case  for  relief  in  equit}'. 

£ill  dismissed. 


STATE  EX  REL.  CUMBERLAND  TELEPHONE  AND   TELE- 
GRAPH  CO.   V.   TEXAS   AND  PACIFIC    RAILROAD    CO. 

Supreme  Court  of  Louisiana,  1900. 

[28  So.  Rep.  284.1] 

Blanchard,  J.  .  .  .  Defendant  company  is,  quoad  its  lines  in 
Louisiana,  a  Louisiana  corporation.  It  acquired  by  purchase  and  ab- 
sorption the  franchise  rights  and  lines  of  the  New  Orleans  Pacific  Rail- 
way Company,  which  held  under  a  legislative  charter  from  the  vState  of 
Louisiana,  and  whose  domicile  was  the  city  of  New  Orleans.  See  Act 
No.  14,  Acts  La.  1876,  and  articles  of  agreement  of  consolidation 
between  the  Texas  Pacific  Railwa}'  Company  and  the  New  Orleans 
Pacific  Railwa}'  Company,  found  in  the  record.  It  is  not  true  that  the 
court,  in  its  decree  heretofore  rendered,  has  assumed  the  authority  to 
manage  defendant  company's  railway  and  to  direct  the  running  of  its 
trains.  All  the  decree  does  is  to  require  of  the  company  the  perform- 
ance of  the  same  service  for  relator  that  it  has  extended  to  others, 
notably  the  Western  Union  Telegraph  Compan)'.  The  evidence  estab- 
lishes that  poles  and  materials  for  the  construction,  repair,  and  main- 
tenance of  the  Western  Union  lines  have  been  distributed  by  the  cars 
of  plaintiff  company  between  stations,  and  that  this  has  been  going  on 
for  years,  and  still  goes  on.  It  also  establishes  that  it  has  been  con- 
stantly the  practice  of  defendant  company  to  deliver  freight  for  planters 
and  others  between  stations,  and  to  receive  for  transportation,  at  points 
between  stations,  rice,  sugar,  &c.  This  being  shown,  it  is  held  that 
the  company  may  not  discriminate,  and,  when  called  upon  under  con- 
ditions that  are  reasonable,  must  perform  the  like  service  for  relator ; 
and  the  duty,  being  of  a  public  nature,  is  enforceable  by  mandamus. 
The  evidence  also  shows  that  the  same  service  herein  required  of  de- 
fendant company  has  been  freely  accorded  this  relator  and  others  by 
other  railroad  companies  over  their  lines  in  this  and  other  States. 
Relator,  it  appears,  owns  its  own  cars,  on  which  are  loaded  its  tele- 

^  This  case  is  abridged.  —  Ec 


550  CITY  or   MOBILE   V.    BIENVILLE   WATER   SUPPLY   CO. 

phone  and  telegraph  poles.  It  applied  to  defendant  company  to  haul 
these  cars  over  its  lines  between  New  Orleans  and  Shreveport  and 
throw  the  poles  off,  or  permit  them  to  be  thrown  off,  at  convenient  dis- 
tances. Other  railroad  companies,  operating  lines  of  railway  into  and 
out  of  New  Orleans,  had  done  this,  and  defendant  company  does  the 
same  for  the  Western  Union  Telegraph  Company,  a  rival  line.  It  re- 
fused the  service  to  relator.  That  it  is  the  province  of  the  court  to  say 
to  this  common  carrier,  "  What  you  do  for  others  you  cannot  refuse 
to  relator,"  cannot,  we  think,  be  seriously  questioned.  And  in  so  sa}- 
ing,  and  enforcing  by  its  writs  the  performance  of  the  duty,  it  is  not 
apparent  that  defendant  company  is  denied  any  of  the  rights,  privileges, 
and  immunities  granted  to  it  by  the  several  acts  of  Congress  referred 
to  in  the  application  for  rehearing  and  in  the  briefs  filed  on  its  behalf. 
The  rehearing  applied  for  is  denied. 


CITY  OF  MOBILE  v.   BIENVILLE  WATER  SUPPLY   CO. 
Supreme  Court  op  Alabama,  1901. 

[30  So.  Rep.  445.1] 

Appeal  from  Chancery  Court,  Mobile  County ;  Thomas  H.  Smith, 
Chancellor. 

Bill  by  the  Bienville  Water  Supply  Company  against  the  city  of 
Mobile  and  others.  Demurrers  to  the  bill  were  overruled,  and  defend- 
ants appeal. 

Haralson,  J.  ...  3.  The  bill  alleges  that  complainant  is  a  corpora- 
tion chartered  by  the  State  for  the  purpose  of  supplying  and  selling 
water  to  the  city  of  Mobile  and  to  its  inhabitants  ;  that  it  has  laid  its 
mains  and  pipes  in  the  streets  of  the  city  and  established  its  plant  at 
an  expense  of  over  8800,000,  and  is  supplying  water  to  customers  in 
the  city  for  family  use,  sewerage,  and  other  purposes  ;  that  the  city  of 
Mobile,  b}'  an  act  of  the  30th  November,  1898,  was  authorized  to  con- 
struct a  system  of  waterworks  and  sewers  for  the  use  of  itself  and  its 
inhabitants,  and  was  empowered  to  collect  such  rates  for  water  sup- 
plied for  the  use  of  said  sewerage  system  as  shall  be  sufficient  to  pay 
the  interest  on  the  bonds  issued  by  it  for  the  purpose  of  providing  said 
waterworks  and  sewerage  S)'stem8  and  the  expenses  necessary  for 
operating ;  such  rate  not  to  exceed  the  usual  and  customary  rates 
charged  by  other  cities  similarly  situated  for  like  service. 

It  was  further  shown,  that  by  act  February  15,  1899,  entitled  "  An 
Act  to  promote  the  health  of  the  city  of  Mobile,"  &c.  (Act  1898-99, 
p.  895),  the  city  was  empowered  to  compel  connections  with  its  sewers, 
and  for  the  use  thereof,  ^'  to  fix  and  charge  such  reasonable  rates  for 

1  This  case  »  abridged.  —  Ed. 


CITY   OF   MOBILE   V.    BIENVILLE   WATER   SUPPLY   CO.  551 

the  purpose  of  maintaining  and  operating  said  sewerage  sj'stem  and 
paying  the  interest  on  the  bonds  issued  by  the  city  of  Mobile  to  build 
said  sewerage  system,  as  said  mayor  and  general  council  may  deem 
proper ; "  that  it  was  empowered  by  another  act  (Acts  1898-99, 
p.  16),  to  issue  $750,000  of  bonds,  secured  b}*  mortgage  on  its  water 
and  sewerage  system,  of  which  $500,000  was  to  be  used  for  buying  or 
building  waterworks,  and  $250,000  for  buying  or  building  sewers  ;  that 
it  has  issued  and  sold  said  bonds  and  built  both  systems,  expending 
over  $500,000  for  the  water  sj'stem,  and  not  over  8200,000  for  the 
sewer  system  ;  that  it  is  operating  both  systems,  and  from  its  water- 
works is  furnishing  water  to  itself  and  its  inhabitants,  and  is  supplying 
water  on  about  twent}'  miles  of  streets  upon  which  there  are  no  sewers. 

The  averment  is  made,  that  the  cit}'  has  never  fixed  any  rate  for  the 
use  of  its  sewers  alone,  but  it  will  not  allow  any  customers  of  com- 
plainant's water  to  connect  with  or  use  its  sewers,  except  at  the  same 
price  as  the  city  charges  for  both  its  water  and  sewers  together,  in 
effect  forcing  its  citizens  and  inhabitants  to  take  the  water  of  the  city, 
or  to  pa}'  for  the  water  of  complainant  in  addition  to  what  each  citizen 
would  have  to  pay  for  the  city's  water  and  sewerage  together,  discrimi- 
nating, as  is  alleged,  against  complainant  and  making  it,  in  effect,  fur- 
nish water  for  nothing,  or  to  lose  its  customers  by  reason  of  the  double 
charges  so  imposed  on  them ;  that  the  citv  through  its  officers  and 
agents  threatens  the  people  of  Mobile  that  tliey  will  not  be  allowed  to 
use  the  sewers,  unless  they  subscribe  for  and  take  the  city  water,  and 
that  they  will  not  be  allowed  to  use  the  water  of  complainant  in  con- 
nection with  the  cit3''s  sewers  ;  that  the  city  has  the  physical  power,  by 
means  of  its  police  force,  to  enforce  this  threat,  and  it  is  thus  intimidat- 
ing the  customers  of  complainant,  and  compelling  them  to  leave  com- 
plainant and  take  the  water  from  the  cit}'  waterworks,  and  upon  their 
desiring  to  return,  the  city,  through  its  officers,  have  refused  to  let  them 
disconnect  from  the  city's  pipes  or  to  connect  with  complainant's. 

It  is  further  avferred  that  the  city  charges  its  own  customers  on 
streets  where  there  is  no  sewer  service,  the  same  rate  that  it  charges 
others  for  both  water  and  sewers,  along  streets  where  said  sewers  are 
laid,  which,  it  is  alleged,  is  a  discrimination  in  charges  for  sewerage,  not 
only  against  complainant  and  its  customers  of  water,  but  also  against 
all  consumers  of  water  and  customers  of  the  city,  not  on  streets  or  lines 
where  the  sewers  are  laid. 

It  is  also  averred  that  the  city  is  insolvent,  so  that  nothing  can  be 
made  out  of  it  by  execution  at  law. 

4.  The  first,  second,  third,  fourth,  and  fifth  grounds  of  demurrer  to 
the  amended  bill  may  be  grouped  as  raising  in  different  forms,  the  same 
question.  To  state  the  contention  of  defendant  in  the  language  of 
counsel,  these  "  grounds  of  demurrer  challenge  the  sufficiency  of  the 
bill  as  amended,  upon  the  ground  that  the  bill  shows  that  the  servants 
and  agents  of  the  city  exceeded  their  power  and  authority',  [and] 
should  have  been  sustained,"  the  contention  being  "  that  said  acts  and 


552  CITY  OF  MOBILE   V.   BIENVILLE   WATER   SUPPLY  CO. 

doings  of  said  officers  and  agents,  as  charged  in  said  bill  as  amended, 
were  void  and  not  binding  upon  the  city  of  Mobile."  The  bill  alleges, 
however,  very  distinctly  that  the  city  is  committing  the  wrongs  com- 
plained of  through  its  officers  and  agents,  a  fact  the  grounds  of  de- 
murrer specified  clearly  overlook.  The  city  could,  of  course,  commit 
the  alleged  wrongs  in  no  other  way,  except  through  its  agents  and 
officers.  If  the  acts  of  the  city  are  warranted  by  law,  it  could  not  be 
enjoined  from  committing  them.  The  wrongfulness  of  these  acts  is, 
therefore,  the  only  predicate  for  relief. 

5.  The  other  grounds  of  demurrer  to  the  original,  refiled  to  the 
amended  bill,  and  those  added  to  the  bill  as  amended,  raise  the  more 
serious  question  to  be  decided. 

From  the  facts  of  the  case,  as  above  recited,  if  true,  —  as  they  must 
be  taken  on  demurrer,  —  it  distinctly  appears  that  the  city,  while  it 
has  the  authority  to  do  30,  has  never,  by  ordinance,  fixed  anj'  charge 
or  rate  for  the  use  of  its  sewers,  and,  indeed,  is  making  no  charge  to 
its  own  customers  for  the  use  of  the  same ;  that  it  cJiarges  any  one 
using  its  water  alone  as  much  as  it  charges  another  for  the  use  of  both 
water  and  sewer;  and  against  those  who  use  the  complainant's  water, 
it  charges  for  sewer  service  alone  as  much  as  it  charges  its  own  cus- 
tomers for  both  water  and  sewerage,  —  thus  making  its  sewers  free  to 
those  who  use  its  water,  while  it  imposes  on  complainant's  customers 
a  discriminating  and  onerous  charge  for  the  use  of  its  sewers,  —  as 
much,  as  is  alleged,  as  it  charges  for  its  own  water  and  sewerage  in 
addition.  Whether  intended  by  the  city  to  so  operate  or  not,  one  can 
scarcely  conceive  of  a  more  effective  scheme  to  deprive  the  complainant 
of  its  customers  than  the  one  alleged  in  the  bill.  If  complainant  has 
to  furnish  its  customers  with  water,  and  they  are  required  b}'  the  city 
to  pa}'  for  sewerage  the  same  price  it  charges  its  own  customers  for  its 
water  and  sewerage,  it  follows  the  complainant  would  have  to  furnish 
water  practicall}'  free  or  abandon  the  business ;  for  it  would  be  unrea- 
sonable to  suppose  that  an}'  one  would  use  the  complainant's  water 
and  bear  the  additional  expense  imposed  for  so  doing.  These  sewers 
of  the  city  are  for  the  public  at  large,  and  every  one  should  be  per- 
mitted to  use  them  without  any  discrimination  in  charges  against  him. 
The  franchise  to  construct  sewers  being  in  the  nature  of  a  public  use, 
the  duty  is  on  the  city  to  supply  sewerage  rates  to  all  impartially  on 
reasonable  terms.  As  is  said  by  Mr.  Bates,  *'  All  persons  are  entitled 
to  have  the  same  service  on  equal  terms  and  on  uniform  rates."  In 
addition,  it  is  averred,  as  seen,  that  citizens  are  notified  by  the  city 
that  they  cannot  use  its  sewers  unless  they  subscribe  for  the  city  water, 
and  customers  of  complainant,  desiring  to  return  to  it,  are  forbidden 
by  the  city  from  disconnecting  from  its  pipes  and  connecting  with  com- 
plainant's, —  a  threat  the  city  has  the  physical  power  to  enforce. 

If  these  wrongs  exist,  they  should  be  remedied.  The  complainant 
is  far  more  interested  and  injured  than  any  one  or  all  of  its  customers. 
It  cannot  live  and  enjoy  the  rights  and  privileges  bestowed  on  it  by  its 


PHIPPS   V.  LONDON   AND   NORTH   WESTERN   RAILWAY.  553 

charter,  if  by  unjust  discriminations  on  the  part  of  the  city  in  operating 
its  sewer  system,  its  customers  are  taken  from  it.  Its  customers  might 
not  be  willing  to  incur  the  trouble  and  odium  of  litigation  to  redress  the 
private  wrongs  thus  done  to  them,  even  at  complainant's  expense. 
But,  complainant  itself  has  rights  which  should  be  protected  against 
such  alleged  wrongs,  and  is  entitled  to  seek  redress  in  its  own  name. 
The  city  should  on  considerations  of  highest  equit}'  and  justice,  as  by 
its  charter  it  is  authorized  to  do,  fix  a  rate  for  sewer  service,  distinct 
from  the  rate  fixed  for  the  use  of  its  water,  and  this  rate  should  be  the 
same  to  all  persons,  including  the  complainant  and  its  customers,  or, 
it  should  make  them  free  to  all,  without  discrimination.  In  other 
words,  these  sewers  should  be  used  to  promote  the  public  health,  as 
free  to  oue  person  as  another,  or  open  to  all,  if  an}'  rate  of  charges 
is  fixed,  on  equal  terms  and  on  uniform  charges  for  their  use.  No 
more  than  this  can  be  justly  and  legally  claimed  by  the  city  under  its 
authority  from  the  Legislature,  to  establish  its  sewer  system. 

6.  The  complainant  is  entitled,  upon  the  facts  stated,  to  the  re- 
straining power  of  a  Court  of  Equity,  to  remedy  the  wrongs  of  which 
it  complains.  These  continuing  wrongs  must  work  irreparable  injury, 
and,  as  is  alleged,  the  citj-,  the  perpetrator  of  the  wrongs,  is  insolvent. 
High,  Inj.  §§  1236,  1275  ;  3  Pom.  Eq.  Jur.  §  1368. 

There  was  no  error  in  overruling  the  demurrer  to  the  bill. 

Affirmed. 


PHIPPS   V.  LONDON  AND  NORTH   WESTERN  EY.    CO. 

Court  of  Appeal,  1892. 
[1892,  2  Q.  B.  229.1] 

This  was  an  appeal  against  so  much  of  an  order  of  the  Railway 
Commissioners  as  dismissed  an  application  made  b}'  the  executors  and 
trustees  of  the  late  Mr.  Pickering  Phipps,  an  owner  of  iron  furnaces  at 
Duston,  for  an  order  enjoining  the  London  and  North  Western  Rail- 
way Company  to  desist  from  giving  undue  and  unreasonable  preference 
or  advantage  to  the  owners  of  iron  furnaces  at  Butlins  and  Islip  in  re- 
spect of  charges  for  the  conve3'ance  of  pig  iron  to  the  South  Stafford- 
shire markets. 

The  2d  section  of  the  Railway  and  Canal  Traffic  Act,  1854,  enacts 
that  no  railway  company  "  shall  make  or  give  any  undue  or  unreason- 
able preference  or  advantage  to  or  in  favor  of  anj'  particular  person  or 
company,  or  any  particular  description  of  traffic,  in  any  respect  what- 
soever, nor  shall  any  such  company  subject  any  particular  pei'son  or 
compan}',  or  any  particular  description  of  traffic,  to  any  undue  or  un- 
reasonable prejudice  or  disadvantage  in  any  respect  whatsoever." 

1  This  case  is  abridged.  —  Ed. 


554  PHIPPS   V.   LONDON   AND   NORTH   WESTERN   RAILWAY. 

The  effect  of  the  27th  and  29th  sections  of  the  Railway  and  Canal 
Traffic  Act,  1888,  is  shortly  as  follows  :  — 

By  section  27,  first,  whenever  it  is  shown  that  any  railway  company 
charge  one  trader  or  class  of  traders,  or  the  traders  in  any  ilistrict, 
lower  tolls,  rates,  or  charges,  for  the  same  or  similar  merchandise  or 
services,  than  they  charge  to  other  traders  or  classes  of  traders,  or 
to  the  traders  in  another  district,  or  make  an}'  difference  in  treat- 
ment in  respect  of  such  traders,  the  burden  of  proving  that  such  lower 
charge  or  difference  in  treatment  does  not  amount  to  an  undue  prefer- 
ence  is  to  lie  on  the  railwa}-  company  ;  and,  secondly,  in  deciding 
whether  a  lower  charge  or  difference  in  treatment  amounts  to  an  undue 
preference,  the  court,  or  the  commissioners,  ma}*,  so  far  as  thej*  think 
reasonable,  in  addition  to  any  other  considerations  affecting  the  case, 
take  into  consideration  whether  such  lower  charge  or  difference  in  treat- 
ment is  necessary  for  securing  in  the  interests  of  the  public  the  traffic 
in  respect  of  which  it  is  made,  and  whether  the  inequalit}'  cannot  be 
removed  without  unduly  reducing  the  rates  charged  to  the  complainant 

By  section  29,  any  railway  company  may,  for  the  purpose  of  fixing 
their  rates  for  the  carriage  of  merchandise  on  their  railwa}-,  group  to- 
gether an}'  number  of  places  in  the  same  district  situated  at  various 
distances  from  any  point  of  destination  or  departure  of  merchandise, 
and  charge  a  uniform  rate  in  respect  thereof,  provided  that  the  dis- 
tances are  not  unreasonable  and  no  undue  preference  is  created. 

The  sidings  of  the  Duston  furnaces  were  situated  on  the  London  and 
North  Western  Railway  Company's  line  at  a  distance  of  about  sixty 
miles  from  Great  Bridge,  one  of  the  pig  iron  markets  to  the  westward. 
The  sidings  of  the  Butlins  and  Islip  furnaces  were  situated  on  the  same 
line  to  tlie  east  of  the  Duston  furnaces,  and  at  a  distance  from  the 
market  as  to  Butlins  of  about  seventy-one  miles,  and  as  to  Islip  of 
about  eighty-two  miles.  Duston  was  dependent  for  its  railway  carriage 
on  the  London  and  North  Western  Company  alone,  but  Butlins  and 
Islip  had  both  of  them  access  not  only  to  the  London  and  North  West- 
ern, but  also  to  the  Midland  Railway.  The  branch  lines  on  which  the 
Butlins  and  Islip  sidings  were  situate  united  at  a  point  to  the  westward, 
so  that  they  were  nearly  equidistant  from  the  western  markets.  The 
London  and  North  Western  Railway  Company  had,  for  charging  pur- 
poses, grouped  Butlins  and  Islip  together ;  and  although  they  carried 
the  Islip  pig  iron  eleven  miles  further  than  the  Butlins,  they  made  the 
same  charge  from  both  those  places.  The  Midland  Railway  also 
charged  the  same  rate  and  the  same  total  charge  per  ton  for  the  car- 
riage from  Butlins  and  Islip. 

Tlie  London  and  North  Western  Railway  Company,  who  carried  the 
Butlins  pig  iron  eleven  miles  further  and  the  Islip  pig  iron  twenty-two 
miles  further  than  the  Duston  pig  iron,  charged  Butlins  0.95fl?.  per  ton 
per  mile,  and  Islip  0.84f/.  per  ton  per  mile,  while  they  charged  Duston 
1.05rf.  per  ton  per  mile  ;  so  that  the  total  charge  per  ton  of  pig  iron 
from  Duston  to  the  western  markets  was  5.9.  2d.,  while  the  total  charge 


PHIPPS   V.   LONDON    AND    NOllTH   WESTERN   RAILWAY.  555 

per  ton  from  either  Biitlins  or  Islip  was  5s.  8d.  for  the  same  class  of 
merchandise. 

Tlie  allegation  on  the  part  of  the  plaintiffs  was  that  to  charge  for  the 
carriage  of  pig  iron  from  Biitlins  and  Islip  to  the  market  only  Qd.  more 
than  for  the  carriage  from  Duston  was,  having  regard  to  the  difference 
of  distance,  an  undue  preference  b}'  the  company  in  favor  of  Butlins 
and  Islip  as  compared  with  Duston ;  and  they  brought  this  application 
before  the  Railway  Commissioners  under  the  2d  section  of  the  Railway 
and  Canal  Traffic  Act,  1854. 

The  case  made  by  the  company  was  that  the  comparatively  lower 
rates  charged  to  Butlins  and  Islip  were  forced  upon  them  by  the  com- 
petition of  the  Midland  Railway-  Compan}' ;  that  the  lower  charge  was 
made  boiiujide,  and  was,  in  the  terms  of  section  27  of  the  Act  of  1888, 
"  necessary  for  the  purpose  of  securing  in  the  interests  of  the  public 
the  traffic  in  respect  of  which  it  was  made  "  ;  that  there  was  still  a  dif- 
ference of  6f/.  a  ton  in  favor  of  the  plaintiffs,  and  that  the  plaintiffs 
had  not  been  injured  by  the  rates  charged  to  Butlins  and  Islip.  And 
they  produced  evidence  to  show  that  the  competition  in  the  South 
Staffordshire  market  was  such  that  a  difference  of  ^d.  a  ton,  or  even 
less,  in  the  price  of  iron  of  the  same  quality,  would  often  be  enough  to 
secure  a  contract. 

The  Railway  Commissioners  (Wills,  J.,  Sir  Frederick  Peel,  and  Vis- 
count Cobham)  held  that  the  London  and  North  Western  Railway 
Company-  in  fixing  the  rates  in  question  were  entitled  to  take  into  ac- 
count the  circumstance  that  Butlins  and  Ishp  had  access  to  another 
line  of  railway  which  was  in  competition  with  their  own,  and  that  not 
sufficient  case  of  undue  preference  had  been  made  out  against  them. 

The  plaintiffs  appealed. 

Lord  Herschell.  .  .  .  One  class  of  cases  unquestionable  intended 
to  be  covered  by  the  section  is  that  in  which  traffic  from  a  distance  of 
a  character  which  competes  with  the  traffic  nearer  the  market  is  charged 
low  rates,  because  unless  such  low  rates  were  charged  it  would  not 
come  into  the  market  at  all.  It  is  certain  unless  some  such  principle 
as  that  were  adopted  a  large  town  would  necessarily  have  its  food 
supplies  greatly  raised  in  price.  So  that,  although  the  object  of  the 
company  is  simply  to  get  the  traffic,  the  public  have  an  interest  in 
their  getting  the  traffic  and  allowing  the  carriage  at  a  rate  which  will 
render  that  traffic  possible,  and  so  bring  the  goods  at  a  cheaper 
rate,  and  one  which  makes  it  possible  for  those  at  a  greater  distance 
from  the  market  to  compete  with  those  situate  nearer  to  it.  That  is 
one  class  of  cases,  no  doubt,  intended  to  be  dealt  with.  I  think  that  is 
made  evident  by  the  fact  that  they  are  to  consider  whether  it  is  neces- 
sary for  the  purpose  of  securing  the  traffic,  and  whether  the  inequality 
cannot  be  removed  without  unduly  reducing  the  rates  charged  to  the 
complainant.  But,  of  course,  it  might  be  said  :  Well,  but  the  railway 
company  may  be  obliged,  in  order  to  get  the  traffic,  to  bring  those  dis- 
tant goods  at  a  very  cheap  rate.     But  then  let  them  reduce  all  their 


556  PHIPPS   V.   LONDON    AND   NORTH   WESTERN   RAILWAY. 

rates  on  the  intervening  distances.  If  a  man  is  nearer  the  market,  let 
his  rate  be  brought  down  accordingly,  and  all  the  rates  will  then  come 
down  except  those  from  the  distant  point.  But  then  it  was  seen  there 
being  two  ways  of  creating  absolute  equalitj',  one  b}-  raising  the  lower 
rate,  another  b}'  diminishing  the  higher  rate,  there  were  cases  where 
you  would  not  secure  the  traffic  at  all  if  jou  raised  the  lower  rate,  and 
where,  on  the  other  hand,  if,  as  the  condition  of  securing  the  traffic, 
you  were  to  insist  on  diminishing  the  higher  rate,  it  would  be  so  di- 
minished as  to  be  quite  unfair  to  the  compan}-,  and  would  be  undulj- 
reducing  the  rates  charged  to  the  complainant.  Therefore,  the  Legis- 
lature said  all  those  matters  ought  to  be  taken  into  account  by  the 
commissioners  or  the  court  so  far  as  they  think  it  reasonable. 

I  cannot  but  think  that  a  lower  rate  which  is  charged  from  a  more 
distant  point  by  reason  of  a  competing  route  which  exists  thence,  is 
one  of  the  circumstances  which  may  be  taken  into  account  under  those 
provisions,  and  which  would  fall  within  the  terms  of  the  enactment 
quite  as  much  as  the  case  to  which  I  have  called  attention.  Suppose 
that  to  insist  on  absolutel}'  equal  rates  would  practically  exclude  one 
of  the  two  railways  from  the  traffic,  it  is  obvious  that  those  members 
of  the  public  who  are  in  the  neighborliood  where  they  can  have  the 
benefit  of  this  competition  would  be  prejudiced  bj-  any  such  proceed- 
ings. And  further,  inasmuch  as  competition  undoubtedly  tends  to 
diminution  of  charge,  and  the  charge  of  carriage  is  one  which  ultimately 
falls  upon  the  consumer,  it  is  obvious  that  the  public  have  an  interest 
in  the  proceedings  under  this  Act  of  Parliament  not  being  so  used  as  to 
destro}'  a  traffic  which  can  never  be  secured  but  b}'  some  such  reduc- 
tion of  charge,  and  the  destruction  of  which  would  be  prejudicial  to  the 
public  by  tending  to  increase  prices.  Therefore  it  seems  to  me  that, 
whether  you  look  at  the  Act  of  1854  b}-  itself,  or  whether  30U  look  at 
it  in  connection  with  the  provisions  of  sub-section  2  of  section  27  of  the 
Act  of  1888,  to  which  I  have  been  referring,  it  is  impossible  to  say  that 
there  is  anj'thing  in  point  of  law  which  compels  the  tribunal  to  exclude 
from  consideration  this  question  of  competing  routes.  I  do  not  go 
further  than  that.  It  is  not  necessary  to  go  further  than  that.  I  am 
not  for  a  moment  suggesting  to  what  extent  it  is  to  weigh.  I  am  not 
suggesting  that  there  may  not  be  such  an  excessive  difference  in  charge 
made  in  cases  of  competition,  as  that  it  would  be  unreasonable  and  un- 
fair when  you  are  looking  at  the  position  of  the  one  trader  as  compared 
with  the  other.  That  may  be  so,  but  all  that  is  matter  for  the  tribunal 
to  take  into  account,  and  certainly  I  think  that  they  are  entitled  to  take 
it  into  account,  and  to  give  weight  to  it  as  far  as  is  reasonable.  If 
that  be  so,  it  is  of  course  sufficient  to  dispose  of  the  present  case. 

,  Appeal  dismissed} 

1  Compare:  East  Tennessee  R.  R.  v.  Interstate  Commerce  Commission,  183 
U.  8.  1.  — Ed. 


GIN.,  NEW  ORL.,  4  TEX.  PAG.  R.  V.  INTEltSTATE  GOMMERGE  GOM.     557 

CINCINNATI,   NEW  ORLEANS,   &   TEXAS  PACIFIC  RAIL- 
WAY V.    INTERSTATE   COMMERCE   COMMISSION. 

Supreme  Court  of  the  United  States,  1896. 

[162  U.  S.  184.] 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. 

The  investigation  before  the  Interstate  Commerce  Commission 
resulted  in  an  order  in  the  following  terms:  — 

"  It  is  ordered  and  adjudged  that  the  defendants,  the  Cincinnati, 
New  Orleans,  &  Texas  Pacific  Railway  Company,  the  Western  & 
Atlantic  Railroad  Company,  and  the  Georgia  Railroad  Company  do, 
upon  and  after  the  20th  day  of  July,  1891,  wholly  cease  and  desist 
from  charging  or  receiving  any  greater  compensation,  in  the  aggre- 
gate, for  the  transportation  in  less  than  car  loads  of  buggies,  car- 
riages, and  other  articles  classified  by  them  as  freight  of  first  class, 
for  the  shorter  distance  over  the  line  formed  by  their  several  rail- 
roads from  Cincinnati,  in  the  State  of  Ohio,  to  Social  Circle,  in  the 
State  of  Georgia,  than  they  charge  or  receive  for  the  transportation 
of  said  articles  in  less  than  car  loads  for  the  longer  distance  over  the 
same  line  from  Cincinnati  aforesaid  to  Augusta,  in  the  State  of 
Georgia,  and  that  the  said  defendants,  the  Cincinnati,  New  Orleans, 
&  Texas  Pacific  Railway  Company,  do  also,  from  and  after  the  20th 
day  of  July,  1891,  wholly  cease  and  desist  from  charging  or  receiv- 
ing any  greater  aggregate  compensation  for  the  transportation  of 
buggies,  carriages,  and  other  first-class  articles,  in  less  than  car 
loads,  from  Cincinnati  aforesaid  to  Atlanta,  in  the  State  of  Georgia, 
than  one  dollar  per  hundred  pounds." 

The  decree  of  the  Circuit  Court  of  Appeals,  omitting  unimportant 
details,  was  as  follows :  — 

"  It  is  ordered,  adjudged,  and  decreed  .  .  .  that  this  cause  be 
remanded  to  the  Circuit  Court,  with  instructions  to  enter  a  decree  in 
favor  of  the  complainant,  the  Interstate  Commerce  Commission,  and 
against  the  defendants,  the  Cincinnati,  New  Orleans,  &  Texas  Pa- 
cific Railway  Company,  the  Western  &  Atlantic  Railroad  Company, 
and  the  Georgia  Railroad  Company,  commanding  and  restraining  the 
said  defendants,  their  officers,  servants,  and  attorneys,  to  cease  and 
desist  from  making  any  greater  charge,  in  the  aggregate,  on  buggies, 
carriages,  and  on  all  other  freight  of  the  first  class  carried  in  less 
than  car  loads  from  Cincinnati  to  Social  Circle,  than  they  charge  on 
such  freight  from  Cincinnati  to  Augusta;  that  they  so  desist  and 
refrain  within  five  days  after  the  entry  of  the  decree;  and  in  case 
they,  or  any  of  them,  shall  fail  to  obey  said  order,  condemning  the 
said  defendants,  and  each  of  them,  to  pay  one  hundred  dollars  a  day 
for  every  day  thereafter  they  shall  so  fail;  and  denying  the  relief 
prayed  for  in  relation  to  charges  on  like  freight  from  Cincinnati  to 
Atlanta." 


558    CIN.,  NEW  ORL.,  &  TEX.  I'AC.  R.  V.  INTERSTATE  COMMERCE  COM. 

It  will  be  observed  that  in  its  said  decree  the  Circuit  Court  of 
Appeals  adopted  that  portion  of  the  order  of  the  commission  which 
commanded  the  defendants  to  make  no  greater  charge  on  freight  car- 
ried to  Social  Circle  than  on  like  freight  carried  to  Augusta,  and 
disapproved  and  annulled  that  portion  which  commanded  the  Cin- 
cinnati, New  Orleans,  &  Texas  Pacific  Railway  Company  and  the 
Western  &  Atlantic  Railroad  Company  to  desist  from  charging  for 
the  transportation  of  freight  of  like  character  from  Cincinnati  to 
Atlanta  more  than  $1  per  100  pounds. 

The  railroad  companies,  in  their  appeal,  complain  of  the  decree  of 
the  Circuit  Court  of  Appeals  in  so  far  as  it  affirmed  that  portion  of 
the  order  of  the  commission  which  affected  the  rates  charged  to 
Social  Circle.  The  commission,  in  its  appeal,  complains  of  the  de- 
cree, in  that  it  denies  the  relief  prayed  for  in  relation  to  charges  on 
freight  from  Cincinnati  to  Atlanta. 

The  first  question  that  we  have  to  consider  is  whether  the  defend- 
ants, in  transporting  property  from  Cincinnati  to  Social  Circle,  are 
engaged  in  such  transportation  "  under  a  common  control,  manage- 
ment, or  arrangement  for  a  continuous  carriage  or  shipment,"  within 
the  meaning  of  that  language,  as  used  in  the  act  to  regulate 
commerce. 

We  do  not  understand  the  defendants  to  contend  that  the  arrange- 
ment whereb}'  thej'  carr}'  commodities  from  Cincinnati  to  Atlanta  and 
to  Augusta  at  through  rates  which  differ  in  the  aggregate  from  the  aggre- 
gate of  the  local  rates  between  the  same  points,  and  which  through  rates 
are  apportioned  between  them  in  such  a  way  that  each  receives  a  less 
sum  than  their  respective  local  rates,  does  not  bring  them  within  the 
provisions  of  the  statute.  What  the}'  do  claim  is  that,  as  the  charge 
to  Social  Circle,  being  $1.37  per  hundred  pounds,  is  made  up  of  a  joint 
rate  between  Cincinnati  and  Atlanta,  amounting  to  $1.07  per  hundred 
pounds,  and  30  cents  between  Atlanta  and  Social  Circle,  and  as  the  $1.07 
for  carr\ing  the  goods  to  Atlanta  is  divided  between  the  Cincinnati,  New 
Orleans,  and  Texas  Pacific  and  the  Western  and  Atlantic,  75i^g  cents  to 
the  former  and  31  ^^  cents  to  the  latter,  and  the  remaining  30  cents,  being 
the  amount  of  the  regular  local  rate,  goes  to  the  Georgia  company, 
such  a  method  of  carrying  freight  from  Cincinnati  to  Social  Circle  and 
of  apportioning  the  money  earned,  is  not  a  transportation  of  property 
between  those  points  "  under  a  common  control,  management,  or  ar- 
rangement for  a  continuous  carriage  or  shipment." 

Put  in  another  way,  the  argument  is  that,  as  the  Georgia  Railroad 
Company  is  a  corporation  of  the  State  of  Georgia,  and  as  its  road 
lies  wholly  within  that  State,  and  as  it  exacts  and  receives  its  regular 
local  rate  for  the  transportation  to  Social  Circle,  such  company  is 
not,  as  to  freight  so  carried,  within  the  scope  of  the  act  of  Congress. 

It  18,  no  doubt,  true  that,  under  the  very  terms  of  the  act,  its  pro- 
visions do  not  apply  to  the  transportation  of  passengers  or  property,  or 
to  the  receiving,  delivering,  storage,  or  handling  of  property  whollj 


CINv  NEW  OKL.,  &  TEX.  PAC.  R.  V.  INTERSTATE  COMMERCE  COM.      559 

within  one  State,  not  shipped  to  or  from  a  foreign  country  from  or  to 
any  State  or  Territory. 

In  the  answer  filed  by  the  so-called  "  Georgia  Eailroad  Company  " 
in  the  proceedings  before  the  commission,  there  was  the  following 
allegation :  "  This  respondent  says  that  while  no  arrangement  exists 
for  a  through  bill  of  lading  from  Cincinnati  to  Social  Circle,  as  a 
matter  of  fact  the  shipment  from  Cincinnati  to  Social  Circle  by  the 
petitioner  was  made  on  a  through  bill  of  lading,  the  rate  of  which 
was  fixed  by  adding  this  respondent's  local  rate  from  Atlanta  to 
Social  Circle  to  the  through  rate  from  Cincinnati  to  Atlanta." 

The  answer  of  the  Louisville  &  Nashville  Eailroad  Company  and 
Central  Eailroad  &  Banking  Company  of  Georgia,  which  companies, 
as  operating  the  Georgia  railroads,  were  sued  by  the  name  of  the 
"  Georgia  Eailroad  Company,"  in  the  Circuit  Court  of  the  United 
States,  contained  the  following  statement :  — 

"  So  far  as  these  respondents  are  concerned,  they  will  state  that 
on  July  3,  1891,  E.  E.  Dorsey,  general  freight  agent  of  said  Georgia 
Railroad  Company,  issued  a  circular  to  its  connections,  earnestly 
requesting  them  that  thereafter,  in  issuing  bills  of  lading  to  local 
stations  on  the  Georgia  Eailroad,  no  rates  be  inserted  east  of  At- 
lanta, except  to  Athens,  Gainesville,  Washington,  Milledgeville, 
Augusta,  or  points  beyond.  Neither  before  nor  since  the  date  of 
said  circular  have  these  respondents,  operating  said  Georgia  Eail- 
road, been  in  any  way  parties  to  such  through  rates,  if  any,  as  may 
have  been  quoted,  from  Cincinnati  or  other  Western  points  to  any  of 
the  strictly  local  stations  on  said  Georgia  Eailroad.  The  stations 
excepted  in  said  circular  are  not  strictly  local  stations.  Both  be- 
fore and  since  the  date  of  said  circular  respondents  have  received  at 
Atlanta  east-bound  freight  destined  to  strictly  local  stations  on  the 
Georgia  Eailroad,  and  have  charged  full  local  rates  to  such  stations, 
said  rates  being  such  as  they  were  authorized  to  charge  by  the 
Georgia  Eailroad  commission.  Said  rates  are  reasonably  low,  and 
are  charged  to  all  persons  alike,  without  discrimination." 

Upon  tliis  part  of  the  case  the  conclusion  of  the  Circuit  Court  was 
that  the  traffic  from  Cincinnati  to  Social  Circle,  in  issue  as  to  the 
Georgia  Eailroad  Company,  was  local,  and  that  that  company  was 
not,  on  the  facts  presented,  made  a  party  to  a  joint  or  common 
arrangement  such  as  make  the  traffic  to  Social  Circle  subject  to  the 
control  of  the  Interstate  Commerce  Commission. 

We  are  unable  to  accept  this  conclusion.  It  may  be  true  that  the 
Georgia  Eailroad  Company,  as  a  corporation  of  the  State  of  Georgia, 
and  whose  entire  road  is  within  that  State,  may  not  be  legally  com- 
pelled to  submit  itself  to  the  provisions  of  the  act  of  Congress,  even 
when  carrying,  between  points  in  Georgia,  freight  that  has  been 
brought  from  another  State.  It  may  be  that  if,  in  the  present  case, 
the  goods  of  the  James  &  Mayer  Buggy  Company  had  reached  At- 
lanta, and  there  and  then,  for  the  first  time,  and  independently  of 


560   CIN.,  NEW  ORL.,  k  TEX.  PAC.  R.  V.  INTERSTATE  COMMERCE  COM. 

any  existing  arrangement  with  the  railroad  companies  that  had  trans- 
ported them  thither,  the  Georgia  Railroad  Company  was  asked  to 
transport  them,  whether  to  Augusta  or  to  Social  Circle,  that  com- 
pany could  undertake  such  transportation  free  from  the  control  of 
any  supervision  except  that  of  the  State  of  Georgia.  But  when  the 
Georgia  Railroad  Company  enters  into  the  caii'iage  of  foreign  freight, 
by  agreeing  to  receive  the  goods  by  virtue  of  foreign  through  bills  of 
lading,  and  to  participate  in  through  rates  and  charges,  it  thereby 
becomes  part  of  a  continuous  line,  not  made  by  a  consolidation  with 
the  foreign  companies,  but  made  by  an  arrangement  for  the  continu- 
ous carriage  or  shipment  from  one  State  to  another,  and  thus  becomes 
amenable  to  the  federal  act,  in  respect  to  such  interstate  commerce. 
We  do  not  perceive  that  the  Georgia  Railroad  Company  escaped  from 
the  supervision  of  the  commission  by  requesting  the  foreign  com- 
panies not  to  name  or  fix  any  rates  for  that  part  of  the  transporta- 
tion which  took  place  in  the  State  of  Georgia  when  the  goods  were 
shipped  to  local  points  on  its  road.  It  still  left  its  arrangement  to 
stand  with  respect  to  its  terminus  at  Augusta  and  to  other  desig- 
nated points.  Having  elected  to  enter  into  the  carriage  of  interstate 
freights,  and  thus  subjected  itself  to  the  control  of  the  commission, 
it  would  not  be  competent  for  the  company  to  limit  that  control,  in 
respect  to  foreign  tratfic,  to  certain  points  on  its  road,  and  exclude 
other  points. 

The  Circuit  Court  sought  to  fortify  its  position  in  this  regard  by 
citing  the  opinion  of  Mr.  Justice  Brewer  in  the  case  of  Chicago  & 
Northwestern  Railroad  v.  Osborne,  10  U.  S.  App.  430,  when  that 
case  was  before  the  United  States  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit.  It  is  quite  true  that  the  opinion  was  expressed 
that  a  railroad  company  incorporated  by  and  doing  business  wholly 
within  one  State  cannot  be  compelled  to  agree  to  a  common  control, 
management,  or  arrangement  with  connecting  companies,  and  thus  be 
deprived  of  its  rights  and  powers  as  to  rates  on  its  own  road.  It 
was  also  said  that  it  did  not  follow  that,  even  if  such  a  State  corpo- 
ration did  agree  to  form  a  continuous  line  for  carrying  foreign 
freight  at  a  through  rate,  it  was  thereby  prevented  from  charging 
its  ordinary  local  rates  for  domestic  traffic  originating  within  the 
State. 

Thus  understood,  there  is  nothing  in  that  case  which  we  need  dis- 
agree with,  in  disapproving  the  Circuit  Court's  view  in  the  present 
case.  All  we  wish  to  be  understood  to  hold  is  that  when  goods  are 
shipped  under  a  through  bill  of  lading  from  a  point  in  one  State  to  a 
point  in  another,  are  received  in  transit  by  a  State  common  carrier, 
under  a  conventional  division  of  the  charges,  such  cai-rier  must  be 
deemed  to  have  subjected  its  road  to  an  arrangement  for  a  continuous 
carriage  or  shipment,  within  the  meaning  of  the  act  to  regulate  com- 
merce. When  we  speak  of  a  "  through  bill  of  lading,"  we  are  refer- 
riDg  to  the  usual  method  in  use  by  connecting  companies,  and  must 


CIN.,  NEW  OEL.,  4  TEX.  PAC.  K.  V.  INTERSTATE   COMMEKCE  COM.    561 

not  be  understood  to  imply  that  a  common  control,  management,  or 
arrangement  might  not  be  otherwise  manifested. 

Subject,  then,  as  we  hold  the  Georgia  Railroad  Company  is,  under 
the  facts  found,  to  the  provisions  of  the  act  to  regulate  commerce,  in 
respect  to  its  interstate  freight,  it  follows,  as  we  think,  that  it  was 
within  the  jurisdiction  of  the  commission  to  consider  whether  the 
said  company,  in  charging  a  higher  rate  for  a  shorter  than  for  a 
longer  distance  over  the  same  line,  in  the  same  direction,  the  shorter 
being  included  within  the  longer  distance,  was  or  was  not  transport- 
ing property,  in  transit  between  States,  under  "  substantially  similar 
circumstances  and  conditions." 

We  do  not  say  that  under  no  circumstances  and  conditions  would 
it  be  lawful,  when  engaged  in  the  transportation  of  foreign  freight, 
for  a  carrier  to  charge  more  for  a  shorter  than  a  longer  distance  on 
its  own  line ;  but  it  is  for  the  tribunal  appointed  to  enforce  the  pro- 
visions of  the  statute,  whether  the  commission  or  the  court,  to  con- 
sider whether  the  existing  circumstances  and  conditions  were  or  were 
not  substantially  simflar. 

It  has  been  forcibly  argued  that  in  the  present  case  the  commission 
did  not  give  due  weight  to  the  facts  that  tended  to  show  that  the  cir- 
cumstances and  conditions  were  so  dissimilar  as  to  justify  the  rates 
charged.  But  the  question  was  one  of  fact,  peculiarly  within  the 
province  of  the  commission,  whose  conclusions  have  been  accepted 
and  approved  by  the  Circuit  Court  of  Appeals,  and  we  find  nothing 
in  the  record  to  make  it  our  duty  to  draw  a  different  conclusion. 

We  understand  the  record  as  disclosing  that  the  commission,  in 
view  of  the  circumstances  and  conditions  in  which  the  defendants 
were  operating,  did  not  disturb  the  rates  agreed  upon,  whereby  the 
same  charge  was  made  to  Augusta  as  to  Atlanta, — a  less  distant 
point.  Some  observations  made  by  the  commission,  in  its  report, 
on  the  nature  of  the  circumstances  and  conditions  which  would  jus- 
tify a  greater  charge  for  the  shorter  distance,  gave  occasion  for  an 
interesting  discussion  by  the  respective  counsel.  But  it  is  not  neces- 
sary for  us,  in  the  present  case,  to  express  any  opinion  on  a  subject 
so  full  of  difficulty. 

These  views  lead  to  an  affirmance  of  the  decree  of  the  Circuit 
Court  of  Appeals,  in  so  far  as  the  appeal  of  the  defendant  companies 
is  concerned,  and  we  are  brought  to  a  consideration  of  the  appeal  by 
the  Interstate  Commerce  Commission. 

That  appeal  presents  the  question  whether  the  Circuit  Court  of 
Appeals  erred  in  its  holding  in  respect  to  the  action  of  the  Interstate 
Commerce  Commission,  in  fixing  a  maximum  rate  of  charges  for  the 
transportation  of  freight  of  the  first  class  in  less  than  car  loads  from 
Cincinnati  to  Atlanta. 

This  question  may  be  regarded  as  twofold,  and  is  so  presented  in 
the  assignment  of  error  filed  on  behalf  of  the  commission,  namely: 
Did  the  court  err  in  not  holding  that  in  point  of  law  the  Interstate 

36 


562    CIN.,  NEW  ORL.,  A;  TEX.  PAC.  R.  V.  INTERSTATE  COMMERCE  COM. 

Commerce  Commission  had  power  to  fix  a  maximum  rate?  and,  if 
such  power  existed,  did  the  court  err  in  not  holding  that  the  evi- 
dence justified  the  rate  fixed  by  the  commission,  and  not  decreeing 
accordingly  ? 

It  is  stated  by  the  commission,  in  its  report,  that  "  the  only  testi- 
mony offered  or  heard  as  to  the  reasonableness  of  the  rate  to  Atlanta 
in  question  was  that  of  the  Vice-President  of  the  Cincinnati,  New 
Orleans,  &  Texas  Pacific  Company,  whose  deposition  was  taken  at 
the  instance  of  the  company."  And  in  acting  upon  the  subject  the 
commission  say :  — 

"  This  statement  or  estimate  of  the  rate  from  Cincinnati  to  Atlanta 
($1.01  per  hundred  pounds  in  less  than  car  loads),  we  believe,  is  fully 
as  high  as  it  may  reasonably  be,  if  not  higher  than  it  should  be ;  but, 
without  more  thorough  investigation  than  it  is  now  practicable  to 
make,  we  do  not  feel  justified  in  determining  upon  a  more  moderate 
rate  than  $1  per  hundred  pounds  of  first-class  freight  in  less  than  car 
loads.  The  rate  on  this  freight  from  Cincinnati  to  Birmingham, 
Alabama,  is  89  cents,  as  compared  with  01.07-  to  Atlanta,  the  dis- 
tances being  substantially  the  same.  There  is  apparently  nothing  in 
the  nature  and  character  of  the  service  to  justify  such  difference,  or 
in  fact  to  warrant  any  substantial  variance  in  the  Atlanta  and  Bir- 
mingham rate  from  Cincinnati." 

But  when  the  commission  filed  its  petition  in  the  Circuit  Court  of 
the  United  States,  seeking  to  enforce  compliance  with  the  rate  of  81 
per  100  pounds,  as  fixed  by  the  commission,  the  railroad  companies, 
in  their  answers,  alleged  that  "  the  rate  charged  to  Atlanta,  namely, 
$1.07  per  hundred  pounds,  was  fixed  by  active  competition  between 
various  transportation  lines,  and  w-as  reasonably  low." 

Under  this  issue  evidence  was  taken,  and  we  learn  from  the  opin- 
ion of  the  Circuit  Court  that,  as  to  the  rate  to  Birmingham,  there  was 
evidence  before  the  court  which  evidently  was  not  before  the  com- 
mission, namely,  that  the  rate  from  Cincinnati  to  Birmingham,  which 
seems  previously  to  have  been  $1.08,  was  forced  down  to  89  cents  by 
the  building  of  the  Kansas  City,  Memphis,  &  Birmingham  Railroad, 
which  new  road  caused  the  establishment  of  a  rate  of  75  cents  from 
Memphis  to  Birmingham,  and,  by  reason  of  water  route  to  the  North- 
west, such  competition  was  brought  about  that  the  present  rate  of  89 
cents  from  Cincinnati  to  Birmingham  was  the  result. 

Without  stating  the  reasoning  of  the  Circuit  Court,  which  will  be 
found  in  the  report  of  the  case  in  64  Fed.  981,  the  conclusion  reached 
was  that  the  evidence  offered  in  that  court  was  sufficient  to  overcome 
&ny  prima  facie  case  that  may  have  been  made  by  the  findings  of  the 
commission,  and  that  the  rate  complained  of  was  not  unreasonable. 

As  already  stated,  the  Circuit  Court  of  Appeals  adopted  the  views 
of  the  Circuit  Court  in  respect  to  the  reascmableness  of  the  rate 
charged  on  first-class  freight  carried  on  defendants'  line  from  Cin- 
cinnati to  Atlanta;  and,  as  both  courts  found  the  existing  rate  to 


CIN.,  NEW  ORL.,  &  TEX.  PAG.  E.  V.  INTERSTATE  COMMERCE  COM.    563 

have  been  reasonable,  we  do  not  feel  disposed  to  review  their  finding 
on  that  matter  of  fact. 

We  think  this  a  proper  occasion  to  express  disapproval  of  such  a 
method  of  procedure  on  the  part  of  the  railroad  companies  as  should 
lead  them  to  withhold  the  larger  part  of  their  evidence  from  the  com- 
mission, and  first  adduce  it  in  the  Circuit  Court.  The  commission  is 
an  administrative  board,  and  the  courts  are  only  to  be  resorted  to 
when  the  commission  prefers  to  enforce  the  provisions  of  the  statute 
by  a  direct  proceeding  in  the  court,  or  when  the  orders  of  the  com- 
mission have  been  disregarded.  The  theory  of  the  act  evidently  is, 
as  shown  by  the  provision,  that  the  findings  of  the  commission  shall 
be  regarded  as  prima  facie  evidence,  that  the  facts  of  the  case  are  to 
be  disclosed  before  the  commission.  We  do  not  mean,  of  course, 
that  either  party,  in  a  trial  in  the  court,  is  to  be  restricted  to  the 
evidence  that  was  before  the  commission,  but  that  the  purposes  of  the 
act  call  for  a  full  inquiry  by  the  commission  into  all  the  circumstances 
and  conditions  pertinent  to  the  questions  involved. 

Whether  Congress  intended  to  confer  upon  the  Interstate  Commerce 
Commission  the  power  to  itself  fix  rates  was  mooted  in  the  courts 
below,  and  is  discussed  in  the  briefs  of  counsel. 

We  do  not  find  any  provision  of  the  act  that  expressly,  or  by 
necessary  implication,  confers  such  a  power. 

It  is  argued  on  behalf  of  the  commission  that  the  power  to  pass 
upon  the  reasonableness  of  existing  rates  implies  a  right  to  prescribe 
rates.  This  is  not  necessarily  so.  The  reasonableness  of  the  rate, 
in  a  given  case,  depends  on  the  facts,  and  the  function  of  the  com- 
mission is  to  consider  these  facts  and  give  them  their  proper  weight. 
If  the  commission,  instead  of  withholding  judgment  in  such  a  matter 
until  an  issue  shall  be  made  and  the  facts  found,  itself  fixes  a  rate, 
that  rate  is  prejudged  by  the  commission  to  be  reasonable. 

We  prefer  to  adopt  the  view  expressed  by  the  late  Justice  Jackson, 
when  Circuit  Judge,  in  the  case  of  Interstate  Commerce  Commission 
V.  Baltimore  &  Ohio  Railroad  Co.,  43  Fed.  37,  and  whose  judgment 
was  afl!irmed  by  this  court,  145  U.  S.  263 :  — 

"  Subject  to  the  two  leading  prohibitions  that  their  charges  shall 
not  be  unjust  or  um'easonable,  and  that  they  shall  not  unjustly  dis- 
criminate, so  as  to  give  undue  preference  or  disadvantage  to  persons 
or  traffic  similarly  circumstanced,  the  act  to  regulate  commerce  leaves 
common  carriers  as  they  were  at  the  common  law,  —  free  to  make 
special  contracts  looking  to  the  increase  of  their  business,  to  classify 
their  trafific,  to  adjust  and  apportion  their  rates  so  as  to  meet  the 
necessities  of  commerce,  and  generally  to  manage  their  important 
interests  upon  the  same  principles  which  are  regarded  as  sound,  and 
adopted  in  other  trades  and  pursuits." 

The  decree  of  the  Circuit  Court  of  Appeals  is  affi/rmed. 


564         TEXAS  4  PACIFIC  B.   V.   INTEKSTATE  COMMERCE   COM. 

TEXAS   &   PACIFIC   RAILWAY  v.    INTERSTATE 
COMMERCE  COMMISSION. 

SUPB£M£   COUBT   OF   THE   UmIT£D    StATES,    1896. 
[162  U.  S.  197.] 

The  object  of  the  bill  was  to  compel  the  defendant  company  to 
obey  an  order  of  the  Interstate  Commerce  Commission.^  .  .  . 

It  appears  by  the  bill  that,  on  March  23,  1889,  the  commission, 
of  its  own  motion  and  without  a  hearing  of  the  parties  to  be  affected, 
had  made  a  certain  order  wherein,  among  other  things,  it  was  pro- 
vided as  follows:  — 

"  Imported  traffic  ti'ansported  to  any  place  in  the  United  States 
from  a  port  of  entry  or  place  of  reception,  whether  in  this  country  or 
in  an  adjacent  foreign  country,  is  required  to  be  taken  on  the  inland 
tariff  governing  other  freights."     2  Interst.  Commerce  Com.  R.  658. 

Subsequently  complaint  was  made  to  the  Interstate  Commerce 
Commission,  in  a  petition  filed  by  the  New  York  Board  of  Trade 
and  Transportation,  that  certain  railroad  companies  were  disregard- 
ing said  order,  .  .  .  among  them  the  Texas  &  Pacific  Railway  Com- 
pany, the  defendant  in  the  present  case.  .  .  . 

The  answer  of  the  Texas  &,  Pacific  Railway  Company,  admitting 
that,  both  before  and  since  March  23,  1889,  it  had  carried  imported 
traffic  at  lower  rates  than  it  contemporaneously  charged  for  like  traffic 
originating  in  the  United  States,  justified  by  claiming  that  through 
shipments  from  a  foreign  country  to  the  interior  of  the  United  States 
differ  in  circumstances  and  conditions  from  shipments  originating  at 
the  American  seaboard  bound  for  the  same  interior  points,  and  that 
defendant  company  has  a  legal  right  to  accept  for  its  share  of  the 
through  rate  a  lower  sum  than  it  receives  for  domestic  shipment  to 
fhe  same  destination  from  the  point  at  which  the  imported  traffic 
enters  this  country. 

The  result  of  the  hearing  before  the  Interstate  Commerce  Commis- 
sion was,  so  far  as  the  present  case  is  concerned,  that  the  commis- 
sion held  that  the  Texas  &  Pacific  Railway  Company  was  not  justified 
in  accepting,  as  its  share  of  a  through  rate  on  imported  traffic,  a  less 
charge  or  sum  than  it  charged  and  received  for  inland  traffic  between 
the  port  of  reception  and  the  point  of  delivery,  and  the  said  order  of 
January  29,  1891,  commanding  that  said  company  desist  from  dis- 
tinguishing in  its  charges  between  foreign  and  inland  traffic,  was 
made.     4  Interst.  Commerce  Com.  R.  447. 

As  the  Texas  &  Pacific  Railway  Company  declined  to  obsei-ve  said 
order,  the  commission  filed  its  present  bill  against  said  company  in 
the  Circuit  Court  of  the  United  States  for  the  Southern  District  of 
New  York. 

1  The  statement  of  facts  is  ranch  condensed,  and  part  of  the  opinion  is  omitted.  ^ 


TEXAS   &   PACIFIC   R.   V.   INTERSTATE   COMMERCE   COM.  565 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. 

The  answer  of  the  Texas  &  Pacific  Railway  Company  to  the  peti- 
tion of  the  New  York  Board  of  Trade  pnd  Transportation  before  the 
Interstate  Commence  Commission,  and  the  answer  of  said  company 
to  the  petition  of  the  commission  filed  in  the  Circuit  Court,  allege: 
That  rates  for  the  transportation  of  commodities  from  Liverpool  and 
London,  England,  to  San  Francisco,  Cal.,  are  in  effect  fixed  and 
controlled  by  the  competition  of  sailing  vessels  for  the  entire  dis- 
tance; by  steamships  and  sailing  vessels  in  connection  with  railroads 
across  the  Isthmus  of  Panama;  by  steamships  and  sailing  vessels 
from  pjurope  to  New  Orleans,  connecting  these,  under  through  ar- 
rangements with'  the  Southern  Pacific  Company,  to  San  Francisco. 
That,  unless  the  defendant  company  charges  substantially  the  rates 
specified  in  its  answer,  it  would  be  prevented,  by  reason  of  the  com- 
petition aforesaid,  from  engaging  in  the  carrying  and  transportation 
of  property  and  import  traflfic  from  Liverpool  and  London  to  San 
Francisco,  and  would  lose  the  revenue  derived  by  it  therefrom,  which 
is  considerable,  and  important  and  valuable  to  said  company.  That 
the  rates  charged  by  it  are  not  to  the  prejudice  or  disadvantage  of 
New  Orleans,  and  work  no  injury  to  that  community,  because,  if 
said  company  is  prevented  from  participating  in  said  traffic,  such 
trafllc  would  move  via  the  other  routes  and  lines  aforesaid  without 
benefit  to  New  Orleans,  but,  on  the  contrary,  to  its  disadvantage. 
That  the  foreign  or  import  traflSc  is  upon  orders  by  persons,  firms, 
and  corporations  in  San  Francisco  and  vicinity,  buying  direct  of  first 
hands  in  London,  Liverpool,  and  other  European  markets;  and,  if 
the  order  of  the  commission  should  be  carried  into  effect,  it  would 
not  result  in  discontinuance  of  that  practice  or  in  inducing  them  to 
buy  in  New  Orleans  in  any  event.  That  the  result  of  the  order  would 
be  to  injuriously  affect  the  defendant  company  in  the  carriage  of 
articles  of  foreign  imports  to  Memphis,  St.  Louis,  Kansas  City,  and 
other  Missouri  River  points.  That  by  such  order  the  defendant  com- 
pany would  be  prevented  from  competing  for  freight  to  important 
points  in  the  State  of  Texas  with  the  railroad  system  of  that  State, 
having  Galveston  as  a  receiving  port,  and  which  railroad  system  is 
not  subject  to  the  control  of  the  Interstate  Commerce  Commission. 
These  allegations  of  the  answer  were  not  traversed  or  denied  by 
the  commission,  but  are  confirmed  by  the  findings  of  the  commis- 
sion attached  as  an  exhibit  to  the  petition  in  the  case;  and  by  said 
findings  it  further  appears  that  the  proportion  the  Texas  &  Pacific 
Railway  receives  of  the  through  rate  is  remunerative;  that  the  pre- 
ponderance of  its  empty  cars  go  north  during  eight  months  of  the 
year,  and  if  something  can  be  obtained  to  load,  it  is  that  much 
found,  and  anything  is  regarded  as  remunerative  that  can  be  ob- 
tained to  put  in  its  cars  to  pay  mileage :  that  the  competition  which 
controls  the  making  of  rates  to  the  Pacific  coast  is  steamship  by  way 
of  the  Isthmus  and  in  cheap  heavy  goods  around  Cape  Horn;  that 


566         TEXAS  &  PACIFIC   R.   V.   INTERSTATE   COMMEUCE   COM. 

the  competition  to  interior  points,  such  as  Missouri  River  points  and 
Denver,  is  from  the  trunk  lines  direct  from  the  Atlantic  seaboard; 
that  the  ships  engaged  in  carrying  to  San  Francisco  around  Cape 
Horn  are  almost  wholly  British  bottoms;  that  the  through  bill  of  lad- 
ing furnishes  a  collateral  for  the  transaction  of  business,  takes  from 
the  shipper  and  consignee  both  the  care  as  to  intermediate  charges, 
elevators,  wharves,  and  cost  of  handling,  and  puts  it  on  the  carrier, 
reduces  the  intermediate  charges,  very  much  facilitates  the  transac- 
tion of  business,  and  helps  to  swell  its  volume ;  that  the  tendency  of 
the  through  bill  of  lading  is  to  eliminate  the  obstacles  between  the 
producer  and  consumer,  and  it  has  done  much  in  that  direction. 

These  and  other  uncontroverted  facts  that  appear  in  this  record 
would  seem  to  constitute  "  circumstances  and  conditions"  worthy  of 
consideration,  when  carriers  are  charged  with  being  guilty  of  unjust 
discrimination,  or  of  giving  unreasonable  and  undue  preference  or 
advantage  to  any  person  or  localitj'. 

But  we  understand  the  view  of  the  commission  to  have  been  that 
it  was  not  competent  for  the  commission  to  consider  such  facts;  that 
it  was  shut  up,  by  the  terms  of  the  act  of  Congress,  to  consider  only 
such  "  circumstances  and  conditions"  as  pertained  to  the  articles  of 
traffic  after  they  had  reached  and  been  delivered  at  a  port  of  the 
United  States  or  Canada. 

It  is  proper  that  we  should  give  the  views  of  the  commission  in  its 
own  words :  — 

*'  The  statute  has  provided  for  the  regulation  of  interstate  traffic 
by  interstate  carriers,  partly  by  rail,  and  partly  by  water,  or  all  rail, 
shipped  from  one  point  in  the  United  States  to  another  destination 
within  the  United  States,  or  from  a  point  of  shipment  in  the  United 
States  to  a  port  of  entry  within  the  United  States  or  an  adjacent 
foreign  country,  or  from  a  port  of  entry  either  within  the  United 
States  or  in  an  adjacent  foreign  country,  on  import  traffic  brought  to 
such  port  of  entry  from  a  foreign  port  of  shipment  and  destined  to  a 
place  within  the  United  States.  In  providing  for  this  regulation, 
the  statute  has  also  provided  for  the  methods  of  such  regulation  by 
publication  of  tariffs  of  rates  and  charges  at  points  where  the  freight 
is  received,  and  at  which  it  is  delivered,  and  also  for  taking  into 
consideration  the  circumstances  and  conditions  surrounding  the  trans- 
portation of  the  property.  The  statute  has  undertaken  no  such  regu- 
lation from  foreign  ports  of  shipment  to  ports  of  entry  either  within 
the  tTnited  States  or  to  ports  of  entry  in  an  adjacent  foreign  country, 
and,  as  between  these  ports,  has  provided  for  no  publication  of 
tariffs  of  rates  and  charges,, but  has  left  it  to  the  unrestrained  com- 
petition of  ocean  carriers,  and  all  the  circumstances  and  conditions 
surrounding  it.  These  circumstances  and  conditions  are,  indeed, 
widely  different,  in  many  respects,  from  the  circumstances  and  con- 
ditions surrounding  the  carriage  of  domestic  interstate  traffic  between 
the  States  of  the  American  Union  by  rail  carriers ;  but  as  the  regula 


TEXAS   &   PACIFIC   R.   V.   INTERSTATE   COMMERCE   COM.  567 

tion  provided  for  by  the  act  to  regulate  commerce  does  not  undertake 
to  regulate  or  govern  them,  they  cannot  be  held  to  constitute  reasons, 
in  themselves,  why  imported  freight  brought  to  a  port  of  entry  of  the 
United  States  or  a  port  of  entry  of  an  adjacent  foreign  country,  des- 
tined to  a  place  within  the  United  States,  should  be  carried  at  a 
lower  rate  than  domestic  traffic  from  such  ports  of  entry,  repectively, 
to  the  places  of  destination,  in  the  United  States,  over  the  same  line 
and  in  the  same  direction.  To  hold  otherwise  would  be  for  the  com- 
mission to  create  exceptions  to  the  operation  of  the  statute  not  found 
in  the  statute,  and  no  other  power  but  Congress  can  create  such 
exception  in  the  exercise  of  legislative  authority. 

"  In  the  one  case  the  freight  is  transported  from  a  point  of  origin 
in  the  United  States  to  a  destination  within  the  United  States,  or 
port  of  transshipment,  if  it  be  intended  for  export,  upon  open  pub- 
lished rates,  which  must  be  reasonable  and  just,  not  unjustly  prefer- 
ential to  one  kind  of  traffic  over  another,  and  relatively  fair  and  just 
as  between  localities;  and  the  circumstances  and  conditions  sur- 
rounding and  involved  in  the  transportation  of  the  freight  are  in  a 
very  high  degree  material.  In  the  other  case,  the  freight  originates 
in  a  foreign  country,  its  carriage  is  commenced  from  a  foreign  port, 
it  is  carried  upon  rates  that  are  not  open  and  published,  but  are 
secret,  and  in  making  these  rates  it  is  wholly  immaterial  to  the 
parties  making  them  whether  they  are  reasonable  and  just  or  not, 
so  they  take  the  freight  and  beat  a  rival,  and  it  is  equally  imma- 
terial to  them  whether  they  unjustly  discriminate  against  surround- 
ing or  rival  localities  in  such  foreign  country  or  not.  Imported 
foreign  merchandise  has  all  the  benefit  and  advantage  of  rates  thus 
made  in  the  foreign  ports;  it  also  has  all  the  benefit  and  advantage 
of  the  low  rates  made  in  the  ocean  carriage,  arising  from  the 
peculiar  circumstances  and  conditions  under  which  that  is  done; 
but,  when  it  reaches  a  port  of  entry  of  the  United  States,  or  a 
port  of  entry  of  a  foreign  country  adjacent  to  the  United  States, 
in  either  event  upon  a  through  bill  of  lading,  destined  to  a  place  in 
the  United  States,  then  its  carriage  from  such  port  of  entry  to  its 
place  of  destination  in  the  United  States,  under  the  operation  of  the 
act  to  regulate  commerce,  must  be  under  the  inland  tariff  from  such 
port  of  entry  to  such  place  of  destination,  covering  other  like  kind 
of  traffic  in  the  elements  of  bulk,  weight,  value,  and  of  carriage; 
and  no  unjust  preference  must  be  given  to  it  in  carriage  or  facilities 
of  carriage  over  otUer  freight.  In  such  case,  all  the  circumstances 
and  conditions  that  have  surrounded  its  rates  and  carriage  from  the 
foreign  port  to  the  port  of  entry  have  had  their  full  weight  and 
operation,  and  in  its  carriage  from  the  port  of  entry  to  the  place  of 
its  destination  in  the  United  States.  The  mere  fact  that  it  is  foreign 
merchandise  thus  brought  from  a  foreign  port  is  not  a  circumstance 
or  condition,  under  the  operation  of  the  act  to  regulate  commerce, 
which  entitles  it  to  lower  rates,  or  any  other  preference  in  facilities 


568  TEXAS   &   PACIFIC   R.   V.   INTERSTATE   COMMERCE   COM. 

and  carriage,  over  borne  merchaodise,  or  other  traffic  of  a  like  kind, 
carried  by  the  inland  carrier,  from  the  port  of  entry  to  the  place  of 
destination  in  the  United  States,  for  the  same  distance,  and  over  the 
same  line.  .  .  . 

"  The  act  to  regulate  commerce  will  be  examined  in  vain  to  find 
any  intimation  that  there  shall  be  any  difference  made  in  the  tolls, 
rates,  or  charges  for,  or  any  difference  in  the  treatment  of  home  and 
foreign  merchandise,  in  respect  to  the  same  or  similar  service  ren- 
dered in  the  transportation,  when  this  transportation  is  done  under 
the  operation  of  this  statute.  Certainly,  it  would  require  a  proviso 
or  exception,  plainly  ingrafted  upon  the  face  of  the  act  to  regulate 
commerce,  before  any  tribunal  charged  with  its  administration,  would 
be  authorized  to  decide  or  hold  that  foreign  merchandise  was  entitled 
to  any  preference  in  tolls,  rates,  or  charges  made  for,  or  any  differ- 
ence in  its  treatment  for,  the  same  or  similar  service  as  against 
home  merchandise.  Foreign  and  home  merchandise,  therefore,  under 
the  operation  of  this  statute,  when  handled  and  transported  by  inter, 
state  carriers,  engaged  in  carriage  in  the  United  States,  stand  exactlj 
upon  the  same  basis  of  equality  as  to  tolls,  rates,  charges,  and  treat 
ment  for  similar  services  rendered. 

"  The  business  complained  of  in  this  proceeding  is  done  in  tho 
shipment  of  foreign  merchandise  from  foreign  ports  through  ports  oi 
entry  of  the  United  States,  or  through  ports  of  entry  in  a  foreign 
country  adjacent  to  the  United  States,  to  points  of  destination  in  the 
United  States,  upon  through  bills  of  lading."  4  Interst.  Commerce 
Com.  R.  512-516. 

It  is  obvious,  therefore,  that  the  commission,  in  formulating  the 
order  of  January  29,  1891,  acted  upon  that  view  of  the  meaning  ol 
the  statute  which  is  expressed  in  the  foregoing  passages. 

We  have,  therefore,  to  deal  only  with  a  question  of  law,  and  that 
is.  What  is  the  true  construction,  in  respect  to  the  matters  involved 
in  the  present  controversy,  of  the  act  to  regulate  commerce  ?  If  the 
construction  put  upon  the  act  by  the  commission  was  right,  then  the 
order  was  lawful ;  otherwise,  it  was  not 

Before  we  consider  the  phraseology  of  the  statute,  it  may  be  well 
to  advert  to  the  causes  which  induced  its  enactment.  They  chiefly 
grew  out  of  the  use  of  railroads  as  the  principal  modern  instrumen- 
tality of  commerce.  While  shippers  of  merchandise  are  under  no 
legal  necessity  to  use  railroads,  they  are  so  practically.  The  demand 
for  speedy  and  prompt  movement  virtually  forbids  the  employment 
of  slow  and  old-fasbioned  methods  of  transportation,  at  least  in  the 
case  of  the  more  valuable  articles  of  traffic.  At  the  same  time,  the 
immense  outlay  of  money  required  to  build  and  maintain  railroads, 
and  the  necessity  of  resorting,  in  securing  the  rights  of  way,  to  the 
power  of  eminent  domain,  in  effect  disable  individual  merchants  and 
shippers  from  themselves  providing  such  means  of  carriage.  From 
the  very  nature  of  the  case,  therefore,  railroads  are  monopolies,  and 


TEXAS   A   PACIFIC   R.   V.   INTERSTATE   COMMERCE   COM.  569 

the  evils  that  usually  accompany  monopolies  soon  began  to  show 
themselves,  and  were  the  cause  of  loud  complaints.  The  companies 
owning  the  railroads  were  charged,  and  sometimes  truthfully,  with 
making  unjust  discriminations,  between  shippers  and  localities, 
with  making  secret  agreements  with  some  to  the  detriment  of  other 
patrons,  and  with  making  pools  or  combinations  with  each  other, 
leading  to  oppression  of  entire  communities. 

Some  of  these  mischiefs  were  partially  remedied  by  special  pro- 
visions inserted  in  the  charters  of  the  companies,  and  by  general 
enactments  by  the  several  States,  such  as  clauses  restricting  the 
rates  of  toll,  and  forbidding  railroad  companies  from  becoming  con- 
cerned in  the  sale  or  production  of  articles  carried,  and  from  making 
unjust  preferences.  Relief,  to  some  extent,  was  likewise  found  in 
the  action  of  the  courts  in  enforcing  the  principles  of  the  common 
law  applicable  to  common  carriers, — particularly  that  one  which 
requires  uniformity  of  treatment  in  like  conditions  of  service. 

As,  however,  the  powers  of  the  States  were  restricted  to  their  own 
territories,  and  did  not  enable  them  to  efficiently  control  the  manage- 
ment of  great  corporations,  whose  roads  extend  through  the  entire 
country,  there  was  a  general  demand  that  Congress,  in  the  exercise 
of  its  plenary  power  over  the  subject  of  foreign  and  interstate  com- 
merce, should  deal  with  the  evils  complained  of  by  a  general  enact- 
ment, and  the  statute  in  question  was  the  result. 

The  scope  or  purpose  of  the  act  is,  as  declared  in  its  title,  to 
regulate  commerce.  It  would,  therefore,  in  advance  of  an  examina- 
tion of  the  text  of  the  act,  be  reasonable  to  anticipate  that  the  legis- 
lation would  cover,  or  have  regard  to,  the  entire  field  of  foreign  and 
interstate  commerce,  and  that  its  scheme  of  regulation  would  not  be 
restricted  to  a  partial  treatment  of  the  subject.  So,  too,  it  could  not 
be  readily  supposed  that  Congress  intended,  when  regulating  such 
commerce,  to  interfere  with  and  interrupt,  much  less  destroy,  sources 
of  trade  and  commerce  already  existing,  nor  to  overlook  the  property 
rights  of  those  who  had  invested  money  in  the  railroads  of  the 
country,  nor  to  disregard  the  interests  of  the  consumers,  to  furnish 
whom  with  merchandise  is  one  of  the  principal  objects  of  all  systems 
of  transportation. 

Addressing  ourselves  to  the  express  language  of  the  statute,  we 
find,  in  its  first  section,  that  the  carriers  that  are  declared  to  be  sub- 
ject to  the  act  are  those  "  engaged  in  the  transportation  of  passengers 
or  property  wholly  by  railroad,  or  partly  by  railroad  and  partly  by 
water  when  both  are  used,  under  a  common  control,  management,  or 
arrangement,  for  a  continuous  carriage  or  shipment,  from  one  State 
or  Territory  of  the  United  States,  or  the  District  of  Columbia,  to 
any  other  State  or  Territory  of  the  United  States,  or  the  District  of 
Columbia,  or  from  any  place  in  the  United  States  to  an  adjacent  for- 
eign country,  or  from  any  place  in  the  United  States  through  a  foreign 
country  to  any  other  place  in  the  United  States,  and  also  to  the  trans- 


570         TEXAS   4   PACIFIC   R.   V.   INTERSTATE   COMMERCE   COM. 

portation  in  like  manner  of  property  shipped  from  any  place  in  the 
lluited  States  to  a  foreign  country  and  carried  from  such  place  to  a 
port  of  transshipment,  or  shipped  from  a  foreign  country  to  any  place 
in  the  United  States  and  carried  to  such  place  from  a  port  of  entry 
either  in  the  United  States  or  an  adjacent  foreign  country." 

It  would  be  difficult  to  use  language  more  unmistakably  signifying 
that  Congress  had  in  view  the  whole  field  of  commerce  (excepting 
commerce  wholly  within  a  State),  as  well  that  between  the  States  and 
Territories  as  that  going  to  or  coming  from  foreign  countries. 

In  a  later  part  of  the  section  it  is  declared  that  "  the  term 
'  transportation '  shall  include  all  instrumentalities  of  shipment  or 
carriage." 

Having  thus  included  in  its  scope  the  entire  commerce  of  the 
United  States,  foreign  and  interstate,  and  subjected  to  its  regula- 
tions all  carriers  engaged  in  the  transportation  of  passengers  or 
property,  by  whatever  instrumentalities  of  shipment  or  carriage,  the 
section  proceeds  to  declare  that  "  all  charges  made  for  any  service 
rendered  or  to  be  rendered  in  the  transportation  of  passengers  or 
property  as  aforesaid,  or  in  connection  therewith,  or  for  the  receiv- 
ing, delivering,  storage,  or  handling  of  such  property,  shall  be  rea- 
sonable and  just,  and  every  unjust  and  unreasonable  charge  for  such 
service  is  prohibited  and  declared  to  be  unlawful." 

The  significance  of  this  language  in  thus  extending  the  judgment 
of  the  tribunal  established  to  enforce  the  provisions  of  the  act  to  the 
entire  service  to  be  performed  by  carriers,  is  obvious. 

Proceeding  to  the  second  section,  we  learn  that  its  terms  forbid 
any  common  carrier,  subject  to  the  provisions  of  the  act,  from 
charging,  demanding,  collecting,  or  receiving  "  from  any  person  or 
persons  a  greater  or  less  compensation  for  any  service  rendered  or  to 
be  rendered,  in  the  transportation  of  passengers  or  property,  subject 
to  the  provisions  of  the  act,  than  it  charges,  demands,  collects,  or 
receives  from  any  other  person  or  persons  for  doing  for  him  or  them 
a  like  and  contemporaneous  service  in  the  transportation  of  a  like 
kind  of  traffic  under  substantially  similar  circumstances  and  condi- 
tions," and  declare  that  disregard  of  such  prohibition  shall  be  deemed 
"  unjust  discrimination,"  and  unlawful. 

Here,  again,  it  is  observable  that  this  section  contemplates  that 
there  shall  be  a  tribunal  capable  of  determining  whether,  in  given 
cases,  the  services  rendered  are  ''  like  and  contemporaneous,"  whether 
the  respective  traffic  is  of  a  "  like  kind,"  and  whether  the  transporta- 
tion is  under  "  substantially  similar  circumstances  and  conditions." 

The  third  section  makes  it  "  unlawful  for  any  common  carrier, 
subject  to  the  provisions  of  the  act,  to  make  or  give  any  undue  or 
unreasonable  preference  or  advantage  to  any  particular  person,  com- 
pany, firm,  corporation,  or  locality,  any  particular  description  of 
traffic,  in  any  respect  whatsoever,  or  to  subject  any  particular  person, 
company,  firm,  corporation,  or  locality  to  any  undue  or  unreasonable 


TEXAS   4  PACIFIC   R.   V.   INTERSTATE   COMMERCE   COM.  571 

prejudice  or  disadvantage  in  any  respect  whatever."  It  also  pro- 
vides that  every  such  common  carrier  shall  afford  "  all  reasonable, 
proper,  and  equal  facilities  for  the  interchange  of  traflSc  between 
their  respective  lines,  and  for  the  receiving,  forwarding,  and  deliver- 
ing of  passengers  and  property  to  and  from  their  respective  lines  and 
those  connecting  therewith,  and  shall  not  discriminate  in  their  rates 
and  charges  between  such  connecting  lines." 

The  fourth  section  makes  it  unlawful  for  any  such  common  carrier 
to  "  charge  or  receive  any  greater  compensation  in  the  aggregate  for 
the  transportation  of  passengers  or  of  like  kind  of  property,  under 
substantially  similar  circumstances  and  conditions,  for  a  shorter 
than  for  a  longer  distance  over  the  same  line,  in  the  same  direction, 
the  shorter  being  included  within  the  longer  distance,  but  this  shall 
not  be  construed  as  authorizing  any  common  carrier  to  charge  and 
receive  as  great  compensation  for  a  shorter  as  for  a  longer  distance  "; 
and  provision  is  likewise  made  that,  "  upon  application  to  the  com- 
mission appointed  under  the  provisions  of  the  act,  such  common  car- 
rier may,  in  special  cases,  after  investigation  by  the  commission,  be 
authorized  to  charge  less  for  longer  than  for  shorter  distances  for  the 
transportation  of  passengers  or  property,"  and  that  "  the  commission 
may  from  time  to  time  prescribe  the  extent  to  which  such  designated 
common  carrier  may  be  relieved  from  the  operation  of  this  section  of 
the  act." 

The  powers  of  the  Interstate  Commission  are  not  very  clearly 
defined  in  the  act,  nor  is  its  method  of  procedure  very  distinctly 
outlined.  It  is,  however,  declared  in  the  twelfth  section,  as  amended 
March  2,  1889,  and  February  10,  1891,  that  the  commission  "  shall 
have  authority  to  inquire  into  the  management  of  the  business  of  all 
common  carriers  subject  to  the  provisions  of  the  act,  and  shall  keep 
itself  informed  as  to  the  manner  and  method  in  which  the  same  is 
conducted,  and  shall  have  the  right  to  obtain  from  such  common  car- 
riers full  and  complete  information  necessary  to  enable  the  commis- 
sion to  perform  the  duties  and  carry  out  the  objects  for  which  it  was 
created;  and  the  commission  is  hereby  authorized  and  required  to 
execute  and  enforce  the  provisions  of  the  act."  It  is  also  made  the 
duty  of  any  district  attorney  of  the  United  States  to  whom  the  com- 
mission may  apply  to  institute  in  the  proper  court,  and  to  prosecute 
under  the  direction  of  the  attorney  general  of  the  United  States,  all 
necessary  proceedings  for  the  enforcement  of  the  provisions  of  the 
act,  and  for  the  punishment  of  all  violations  thereof.  And  provision 
is  made  for  complaints  to  be  made  by  any  person,  firm,  corporation, 
association,  or  any  mercantile,  agricultural,  or  manufacturing  society, 
or  any  body  politic  or  municipal  organization,  before  the  commis- 
sion, and  for  an  investigation  of  such  complaints  to  be  made  by  the 
commission;  and  it  is  made  the  duty  of  the  commission  to  make 
reports  in  writing  in  respect  thereof,  which  shall  include  the  findings 
of  fact  upon  which  the  conclusiong  of  the  commission  are  based, 


572         TEXAS   4  PACIFIC   R.    V.   INTERSTATE  COMMERCE   COM. 

together  with  its  recommendation  as  to  what  reparation,  if  any, 
should  be  made  by  any  common  carrier  to  any  party  or  parties  who 
may  be  found  to  have  been  injured ;  and  such  findings  so  made  shall 
thereafter,  in  all  judicial  proceedings,  be  deemed  prima  facie  evi- 
dence as  to  each  and  any  fact  found. 

In  the  present  case  no  complaint  seems  to  have  been  made  before 
the  commission  by  any  person,  firm,  company,  or  other  organization, 
against  the  Texas  &  Pacific  Railway  Company,  of  any  disregard  by 
said  company  of  any  provision  of  the  statute  resulting  in  any  specific 
loss  or  damage  to  any  one;  nor  has  the  commission,  in  its  findings, 
disclosed  any  such  loss  or  damage  to  any  individual  complainant. 
And  it  is  made  one  of  the  contentions  of  the  defendant  company  that 
the  entire  proceeding  was  outside  of  the  sphere  of  action  appointed 
by  the  act  to  the  commission,  which  only  had  power,  as  claimed  by 
defendant,  to  inquire  into  complaint  made  by  some  person  or  body 
injured  by  some  described  act  of  the  defendant  company. 

The  complaint  in  the  present  case  was  made  by  certain  corpora- 
tions of  New  York,  Philadelphia,  and  San  Francisco,  known  as 
"  boards  of  trade"  or  "  chambers  of  commerce,"  which  appear  to  be 
composed  of  merchants  and  traders  in  those  cities  engaged  in  the 
business  of  reaching  and  supplying  the  consumers  of  the  United 
States  with  imported  luxuries,  necessities,  and  manufactured  goods 
generally,  and  as  active  competitors  with  the  merchants  at  Boston, 
Montreal,  Philadelphia,  New  Orleans,  San  Francisco,  Chicago,  and 
merchants  in  foreign  countries  who  import  direct  on  through  bills  of 
lading  issued  abroad. 

We  shall  assume,  in  the  disposition  of  the  present  case,  that  a 
valid  complaint  may  be  made  before  the  commission,  by  such  trade 
organizations,  based  on  a  mode  or  manner  of  treating  import  traffic 
by  a  defendant  company,  without  disclosing  or  containing  charges  of 
specific  acts  of  discrimination  or  undue  preference,  resulting  in  loss 
or  dam^e  to  individual  persons,  corporations,  or  associations. 

We  do  not  wish  to  be  understood  as  implying  that  it  would  be 
competent  for  the  commission,  without  a  complaint  made  before  it, 
and  without  a  hearing,  to  subject  common  carriers  to  penalties.  It 
is  also  obvious  that  if  the  commission  does  have  the  power,  of  its 
own  motion,  to  promulgate  general  decrees  or  orders  which  thereby 
become  rules  of  action  to  common  caniers,  such  exercise  of  power 
must  be  confined  to  the  obvious  purposes  and  directions  of  the  stat- 
ute. Congress  has  not  seen  fit  to  grant  legislative  powers  to  the 
commission. 

With  these  provisions  of  the  act  and  these  general  principles  in 
mind,  we  now  come  to  consider  the  case  in  hand. 

After  an  investigation  made  by  the  commission  on  a  complaint 
s^ainst  the  Texas  &  Pacific  Railway  Company  and  other  companies 
by  the  boards  of  trade  above  mentioned,  the  result  reached  was  the 
order  of  the  commission  made  on  January  29,  1891,  a  disregard  of 


TEXAS   &   PACIFIC    R.    V.    INTERSTATE   COMMERCE   COM.  573 

which  was  complained  of  by  the  commission  in  its  bill  or  petition 
filed  in  the  Circuit  Court  of  the  United  States. 

The  Texas  &  Pacific  Railway  Company,  a  corporation  created  by 
laws  of  the  United  States,  and  also  possessed  of  certain  grants  from 
the  State  of  Texas,  owns  a  railroad  extending  from  the  city  of  New 
Orleans,  through  the  State  of  Texas,  to  El  Paso,  where  it  connects 
with  the  railroad  of  the  Southern  Pacific  Company,  the  two  roads 
forming  a  through  route  to  San  Francisco.  The  Texas  &  Pacific 
Railway  Company  has  likewise  connections  with  other  railroads  and 
steamers,  forming  through  freight  lines  to  Memphis,  St.  Louis,  and 
other  points  on  the  Missouri  River,  and  "elsewhere. 

The  defendant  company  admitted  that,  as  a  scheme  or  mode  of 
obtaining  foreign  traflflc,  it  had  agencies  by  which,  and  by  the  use  of 
through  bills  of  lading,  it  secured  shipments  of  merchandise  from 
Liverpool  and  London,  and  other  European  ports,  to  San  Francisco 
and  to  the  other  inland  points  named.  It  alleged  that,  in  order  to 
get  this  traffic,  it  was  necessary  to  give  through  rates  from  the  places 
of  shipment  to  the  places  of  final  destination,  and  that  in  fixing  said 
rates  it  was  controlled  by  an  ocean  competition  by  sailing  and  steam 
vessels  by  way  of  the  Isthmus  and  around  the  Horn,  and  also,  to 
some  extent,  by  a  competition  through  the  Canada  route  to  the 
Pacific  coast.  These  rates,  so  fixed  and  controlled,  left  to  the 
defendant  company  and  to  the  Southern  Pacific  Company,  as  theii 
share  of  the  charges  made  and  collected,  less  than  the  local  charges 
of  said  companies  in  transporting  similar  merchandise  from  New 
Orleans  to  San  Francisco,  and  so,  too,  as  to  foreign  merchandise 
carried  to  other  inland  points.  The  defendant  further  alleged  that 
unless  it  used  said  means  to  get  such  traffic  the  merchandise  to  the 
Pacific  coast  would  none  of  it  reach  New  Orleans,  but  would  go  by 
the  other  means  of  transportation;  that  neither  the  community  of 
New  Orleans,  nor  any  merchant  or  shipper  thereof,  was  injured  or 
made  complaint;  that  the  traffic  thus  secured  was  remunerative  to  the 
railway  company,  and  was  obviously  beneficial  to  the  consumers  at 
the  places  of  destination,  who  were  thus  enabled  to  get  their  goods  at 
lower  rates  than  would  prevail  if  this  custom  of  through  rates  was 
destroyed. 

As  we  have  already  stated,  the  commission  did  not  charge  or  find 
that  the  local  rates  charged  by  the  defendant  company  were  unreason- 
able, nor  did  they  find  that  any  complaint  was  made  by  the  city  of 
New  Orleans,  or  by  any  person  or  organization  there  doing  business. 
Much  less  did  they  find  that  any  complaint  was  made  by  the  localities 
to  which  this  traffic  was  carried,  or  that  any  cause  for  such  complaint 
existed. 

The  commission  justified  its  action  wholly  upon  the  construction 
put  by  it  on  the  act  to  regulate  commerce,  as  forbidding  the  commis- 
sion to  consider  the  "  circumstances  and  conditions"  attendant  upon 
the  foreign  traffic  as  such  "circumstances  and  conditions"  as  they 


574  TEXAS  4   PACIFIC  R.   V.  INTERSTATE  COMMERCE   COM. 

are  directed  in  the  act  to  consider.  The  commission  thought  it  was 
constrained  by  the  act  to  regard  foreign  and  domestic  traffic  as  like 
kinds  of  traffic  under  substantially  similar  circumstances  and  condi- 
tions, and  that  the  action  of  the  defendant  company  in  procuring 
through  traffic  that  would,  except  for  the  through  rates,  not  reach  the 
port  of  New  Orleans,  and  in  taking  its  pro  rata  share  of  such  rates, 
was  an  act  of  "  unjust  discrimination,"  within  the  meaning  of  the  act. 

In  so  construing  the  act,  we  think  the  commission  erred. 

As  we  have  already  said,  it  could  not  be  supposed  that  Congress, 
In  regulating  commerce,  would  intend  to  forbid  or  destroy  an  exist- 
ing branch  of  commerce,  of  value  to  the  common  carriers  and  to  the 
consumers  within  the  United  States.  Clearly  express  language  must 
be  used  in  the  act,  to  justify  such  a  supposition. 

So  far  from  finding  such  language,  we  read  the  act  in  question  to 
direct  the  commission,  when  asked  to  find  a  common  carrier  guilty  of 
a  disregard  of  the  act,  to  take  into  consideration  all  the  facts  of  the 
given  case,  among  which  are  to  be  considered  the  welfare  and  advan- 
tage of  the  common  caixier,  and  of  the  great  body  of  the  citizens  of 
the  United  States  who  constitute  the  consumers  and  recipients  of  the 
merchandise  carried,  and  that  the  attention  of  the  commission  is  not 
to  be  confined  to  the  advantage  of  shippers  and  merchants  who  deal 
at  or  neap  the  ports  of  the  United  States,  in  articles  of  domestic  pro- 
duction. Undoubtedly  the  latter  are  likewise  entitled  to  be  consid- 
ered; but  we  cannot  concede  that  the  commission  is  shut  up,  by  the 
terms  of  this  act,  to  solely  regard  the  complaints  of  one  class  of  the 
comnmnity.  We  think  that  Congress  has  here  pointed  out  that  in 
considering  questions  of  this  sort  the  commission  is  not  only  to  con- 
sider the  wishes  and  interests  of  the  shippers  and  merchants  of  large 
cities,  but  to  consider  also  the  desire  and  advantage  of  the  carriers  in 
securing  special  forms  of  traffic,  and  the  interest  of  the  public  that 
the  carriers  should  secure  that  traffic,  rather  than  abandon  it  or  not 
attempt  to  secure  it.  It  is  self-evident  that  many  cases  may  and  do 
arise  where,  although  the  object  of  the  carriers  is  to  secure  the  traffic 
for  their  own  purposes  and  upon  their  own  lines,  yet  nevertheless 
the  very  fact  that  they  seek,  by  the  charges  they  make,  to  secure  it, 
operates  in  the  interests  of  the  public. 

Moreover,  it  must  not  be  overlooked  that  this  legislation  is  experi- 
mental. Even  in  construing  the  terms  of  a  statute,  courts  must  take 
notice  of  the  history  of  legislation,  and,  out  of  different  possible 
constnictions,  select  and  apply  the  one  that  best  comports  with  the 
genius  of  our  institutions,  and  therefore  most  likely  to  have  been  the 
construction  intended  by  the  lawmaking  power.  Commerce,  in  its 
lai^est  sense,  must  be  deemed  to  be  one  of  the  most  important  sub- 
jects of  legislation;  and  an  intention  to  promote  and  facilitate  it, 
and  not  to  hamper  or  destroy  it,  is  naturally  to  be  attributed  to 
Congress.  The  very  terms  of  the  statute,  that  charges  must  be 
•*  reasonable,"  that  discrimination  must  not  be  "  unjust,"  and  that 


TEXAS   &   PACIFIC   K.   V.   INTERSTATE   COMMERCE   COM.         575 

preference  or  advantage  to  any  particular  person,  firm,  corporation, 
or  locality  must  not  be  "  undue"  or  "unreasonable,"  necessarily 
imply  that  strict  uniformity  is  not  to  be  enforced,  but  that  all  cir- 
cumstances and  conditions  which  reasonable  men  would  regard  as 
affecting  the  welfare  of  the  carrying  companies,  and  of  the  pro- 
ducers, shippers,  and  consumers,  should  be  considered  by  a  tribunal 
appointed  to  carry  into  effect  and  enforce  the  provisions  of  the  act. 

The  principal  purpose  of  the  second  section  is  to  prevent  unjust 
discrimination  between  shippers.  It  implies  that  in  deciding  whether 
differences  in  charges,  in  given  cases,  were  or  were  not  unjust,  there 
must  be  a  consideration  of  the  several  questions  whether  the  services 
rendered  were  "like  and  contemporaneous";  whether  the  kinds  of 
traffic  were  "like";  whether  the  transportation  was  effected  under 
"  substantially  similar  circumstances  and  conditions."  To  answer 
such  questions,  in  any  case  coming  before  the  commission,  requires 
an  investigation  into  the  facts;  and  we  think  that  Congress  must 
have  intended  that  whatever  would  be  regarded  by  common  carriers, 
apart  from  the  operation  of  the  statute,  as  matters  which  warranted 
differences  in  charges,  ought  to  be  considered,  in  forming  a  judgment 
whether  such  differences  were  or  were  not  "  unjust."  Some  charges 
might  be  unjust  to  shippers,  others  might  be  unjust  to  the  carriers. 
The  rights  and  interests  of  both  must,  under  the  terms  of  the  act,  be 
regarded  by  the  commission. 

The  third  section  forbids  any  undue  or  unreasonable  preference  or 
advantage  in  favor  of  any  person,  company,  firm,  corporation,  or 
locality ;  and  as  there  is  nothing  in  the  act  which  defines  what  shall  be 
held  to  be  due  or  undue,  reasonable  or  unreasonable,  such  questions 
are  questions  not  of  law,  but  of  fact.  Tlie  mere  circumstance  that 
there  is  in  a  given  case  a  preference  or  an  advantage  does  not,  of  itself, 
show  that  such  preference  or  advantage  is  undue  or  unreasonable,  within 
the  meaning  of  the  act.  Hence  it  follows  that,  before  the  commission 
can  adjudge  a  common  carrier  to  have  acted  unlawfully,  it  must  ascer- 
tain the  facts  ;  and  here  again  we  think  it  evident  that  those  facts  and 
matters  which  carriers,  apart  from  any  question  arising  under  the  stat- 
ute, would  treat  as  calling,  in  given  cases,  for  a  preference  or  advan- 
tage, are  facts  and  matters  which  must  be  considered  by  the  commission 
in  forming  its  judgment  whether  such  preference  or  advantage  is  undue 
or  unreasonable.  When  the  section  says  that  no  locality  shall  be 
subjected  to  any  undue  or  unreasonable  prejudice  or  disadvantage  in 
any  respect  whatsoever,  it  does  not  mean  that  the  commission  is  to 
regard  only  the  welfare  of  the  localitv  or  community  where  the  traflfic 
originates,  or  where  the  goods  are  shipped  on  the  cars.  The  welfare 
of  tlie  locality  to  which  the  goods  are  sent  is  also,  under  the  terms  and 
spirit  of  the  act,  to  enter  into  the  question. 

The  same  observations  are  applicable  to  the  fourth  section,  or  the  so- 
called  "  long  and  short  haul  provision,"  and  it  is  unnecessary  to  repeat 
them. 


576         TEXAS   4   PACIFIC   R.   V.    INTERSTATE    COMMERCE   COM. 

The  only  argument  urged  in  favor  of  the  view  of  the  commission, 
that  is  drawn  upon  the  language  of  the  statute,  is  found  in  those  pro- 
visions of  the  statute  that  make  it  obligatory  on  the  common  carriers  to 
publish  their  rates,  and  to  file  with  the  commission  copies  of  joint  tariffs 
of  rates  or  charges  over  continuous  lines  or  routes  operated  by  more 
than  one  common  carrier ;  and  it  is  said  that  the  place  at  which  it  would 
seem  that  joint  rates  should  be  published  for  the  information  of  ship- 
pers would  be  at  the  place  of  origin  of  the  freight,  and  that  this  cannot 
be  done,  or  be  compelled  to  be  done,  in  foreign  ports. 

The  force  of  this  contention  is  not  perceived.  Room  is  left  for  the 
application  of  these  provisions  to  traffic  originating  within  the  limits  of 
tlie  United  States,  even  if,  for  any  reason,  the}-  are  not  practically  ap- 
plicable to  traffic  originating  elsewhere.  Nor  does  it  appca^  that  the 
commission  may  not  compel  all  common  carriers  within  the  reach  of 
their  jurisdiction  to  publish  such  rates,  and  to  furnish  the  commission 
with  all  statements  or  reports  prescribed  by  the  statute.  Nor  was 
there  any  allegation,  evidence,  or  finding  in  the  present  case  that  the 
Texas  &  Pacific  Railway  Company  has  failed  to  file  with  the  com- 
mission copies  of  its  joint  tariffs,  showing  the  joint  rates  from  English 
ports  to  San  Francisco,  nor  that  the  compan}'  has  failed  to  make 
public  such  joint  rates  in  such  manner  as  the  commission  may  have 
directed. 

Another  position  taken  by  the  commission  in  its  report,  and  defended 
in  the  briefs  of  counsel,  is  that  it  is  the  duty  of  the  commission  to  so 
construe  the  act  to  regulate  commerce  as  to  make  it  practicallv  co- 
operate with  what  is  assumed  to  be  the  policy  of  the  tariff  laws.  This 
view  is  thus  stated  in  the  report :  — 

"  One  paramount  purpose  of  the  act  to  regulate  commerce,  manifest 
in  all  its  provisions,  is  to  give  to  all  dealers  and  shippers  the  same  rates 
for  similar  services  rendered  by  the  carrier  in  transporting  similar  freight 
over  its  line.  Now.  it  is  apparent  from  the  evidence  in  this  case  that 
many  American  manufacturers,  dealers,  and  localities,  in  almost  every 
line  of  manufacture  and  business,  are  the  competitors  of  foreign  manu- 
facturers, dealers,  and  localities,  for  supplying  the  wants  of  American  con- 
sumers at  interior  places  in  the  United  States,  and  that,  under  domestic 
bills  of  lading,  they  seek  to  require  from  American  carriers  like  service  as 
their  foreign  competitors,  in  order  to  place  their  manufactured  goods, 
property,  and  merchandise  with  interior  consumers.  The  act  to  regu- 
late commerce  secures  them  this  right.  To  deprive  them  of  it  by  any 
course  of  transportation  business  or  device  is  to  violate  the  statute." 
4  Interst.  Commerce  Com.  R.  514,  515. 

Our  reading  of  the  act  does  not  disclose  any  purpose  or  intention  on 
the  part  of  Congress  to  thereby  reinforce  the  provisions  of  the  tariff 
laws.  These  laws  differ  wholly,  in  their  objects,  from  the  law  to  regu- 
late commerce.  Their  main  purpose  is  to  collect  revenues  with  which 
to  meet  the  expenditures  of  the  government,  and  those  of  their  pro- 
yisions,  whereby  Congress  seeks  to  so  adjust  rates  as  to  protect  Ameri- 


TEXAS   &   PACIFIC   R.   V.   INTERSTATE   COMMERCE   COM.  577 

can  manufacturers  and  producers  from  competition  by  foreign  low-priced 
labor,  operate  equally  in  all  parts  of  the  country. 

The  effort  of  the  commission,  b}'  a  rigid  general  order,  to  deprive  the 
inland  consumers  of  the  advantage  of  through  rates,  and  to  thus  give  an 
advantage  to  the  traders  and  manufacturers  of  the  large  seaboard  cities, 
seems  to  create  the  very  mischief  which  it  was  one  of  the  objects  of  the 
act  to  remedy. 

Similar  legislation  by  the  Parliament  of  England  may  render  it  prof- 
itable to  examine  some  of  the  decisions  of  the  courts  of  that  country 
construing  its  provisions. 

In  fact,  the  second  section  of  our  act  was  modelled  upon  section  90 
of  the  English  railway  clauses  consolidation  act  of  1845,  known  as  the 
*'  Equality  Clause"  ;  and  the  third  section  of  our  act  was  modelled  upon 
the  second  section  of  the  English  "  Act  for  the  better  regulation  of  the 
traffic  on  railways  and  canals  "  of  Jul}'  10, 1854,  and  the  eleventh  section 
of  the  act  of  Jul}'  21,  1873,  entitled  "  An  Act  to  make  better  provision 
for  the  carrying  into  effect  the  railway  and  canal  traffic  act,  1854,  and 
for  other  purposes  connected  therewith." 

One  of  the  first  cases  that  arose  under  the  act  of  1854  was  that  of 
Hozier  v.  The  Caledonian  Railway,  1  Nev.  &  McN.  27,  where  Hozier 
filed  a  petition  against  the  railway  company,  alleging  that  he  was  ag- 
grieved by  being  charged  nine  shillings  for  travelling  between  Mother- 
well and  Edinburgh,  a  distance  of  forty-three  miles  ;  while  passengers 
travelling  in  the  same  train,  and  in  the  class  of  carriage,  between  Glas- 
gow and  Edinburgh,  were  charged  only  two  shillings,  which  was  alleged 
to  amount  to  an  undue  and  unreasonable  preference.  But  the  petition 
was  dismissed,  and  the  Court  said :  "  The  only  case  stated  in  the  peti- 
tion is  that  passengers  passing  from  Glasgow  to  Edinburgh  are  carried 
at  a  cheaper  aggregate  rate  than  passengers  from  Motherwell  to  either 
of  these  places.  Now,  that  is  an  advantage,  no  doubt,  to  those  pas- 
sengers travelling  between  Edinburgh  and  Glasgow.  But  is  it  an 
unfair  advantage  over  other  passengers  travelling  between  intermediate 
stations  ?  The  complainer  must  satisf\'  us  that  there  is  something  un- 
fair or  unreasonable  in  what  he  complains  of,  in  order  to  warrant  any 
nterference.  Now  I  have  read  the  statements  in  the  petition,  and 
istened  to  the  argument  in  support  of  it,  to  find  what  there  is  un- 
easonable  in  giving  that  advantage  to  through  passengers.  What 
disadvantage  do  Motherwell  passengers  suffer  by  this?  I  think  that 
no  answer  was  given  to  this,  except  that  there  was  none.  This  peti- 
tioner's complaint  may  be  likened  to  that  of  the  laborer  who,  having 
worked  all  day,  complained  that  others,  who  had  worked  less,  received 
a  penn\'  like  himself." 

The  case  of  Foreman  v.  Great  Eastern  Railway  Co.,  2  Nev.  &  McN. 
202,  was  decided  by  the  English  railway  commissioners  in  1875.  The 
facts  were  that  the  complainants  imported  coal  in  their  own  ships  from 
points  in  the  north  of  England  to  Great  Yarmouth,  and  forwarded  the 
coal  to  various  stations  on  the  defendants'  railwa}',  between   Great 


578  TEXAS  &  PACIFIC  E.  V.  INTERSTATE  COMMERCE  COM. 

Yarmouth  and  Peterborough.  Tlie  complaint  was  that  the  defendants* 
rates  for  carrying  coal  from  Yarmouth  to  stations  in  the  interior,  at 
which  complainants  dealt,  were  unreasonably  greater  than  the  rates 
charged  in  the  opposite  direction,  from  Peterborough  to  such  stations, 
and  that  such  difference  in  rates  was  made  by  the  defendants  for  the 
purpose  of  favoring  the  carriage  of  coal  from  the  interior,  as  against 
coal  brought  to  Yarmouth  by  sea,  and  carried  thence  into  the  interior 
over  the  defendants'  railway.  The  commissioners  found  that  it  was 
true  that  the  defendants  did  carry  coal  from  the  interior  to  London, 
Yarmouth,  and  other  seaports  on  their  line,  at  exceptionally  low  rates, 
but  that  this  was  done  for  the  purpose  of  meeting  the  competition  ex- 
isting at  those  places.  It  appeared  that  the  rate  from  Peterborough 
to  Thetford,  fifty-one  miles,  was  four  shillings,  while  the  rate  from 
Peterborough  to  Yarmouth,  one  hundred  miles,  was  only  three  shil- 
lings. The  commissioners  said:  "As,  however,  the  complainants  do 
not,  as  far  as  their  trade  in  Yarmouth  itself  is  concerned,  use  the 
Great  Eastern  Railway  at  all,  the  company  cannot  be  said  to  prefer 
other  traffic  to  theirs ;  nor  does  the  traffic  act  prevent  a  railway  com- 
pany from  having  special  rates  of  charge  to  a  terminus  to  which 
traffic  can  be  carried  by  other  routes  or  other  modes  of  carriage  with 
which  theirs  is  in  competition." 

In  Harris  v.  Cockermouth  Railway,  1  Nev.  &  McN.  97,  the  court 
held  it  to  be  an  undue  preference  for  a  railway  company  to  concede  to 
the  owner  of  acoUiery  a  lowerrate  than  to  the  owners  of  other  collieries, 
from  the  same  point  of  departure  to  the  same  point  of  arrival,  merely 
because  the  person  favored  had  threatened  to  build  a  railway  for  his 
coal,  and  to  divert  his  traffic  from  defendant's  railway.  But  Chief 
Justice  Cockbum  said :  "  I  quite  agree  that  this  court  has  intimated,  if 
not  absolutely  decided,  that  a  company  is  entitled  to  take  into  considera- 
tion any  circumstances,  either  of  a  general  or  of  a  local  cliaracter,  in 
considering  the  rate  of  charge  which  they  will  impose  upon  any  partic- 
ular traffic.  .  .  .  As,  for  instance,  in  respect  of  terminal  traffic,  there 
might  be  competition  with  another  railway ;  and  in  respect  to  terminal 
traffic,  as  distinguished  from  intermediate  traffic,  it  miglit  well  be  that 
they  could  afford  to  carry  goods  over  the  whole  line  cheaper,  or  pro- 
portionately so,  than  they  could  over  an  intermediate  part  of  the  line." 

In  the  case  of  Budd  v.  London  &  Northwestern  Railway  Co.,  4  Nev. 
&  McN".  393,  and  in  London  &  Northwestern  Railway  v.  Evershed,  3 
App.  Cas.  1029,  it  was  held  that  it  was  not  competent  for  the  railway 
company  to  make  discriminations  between  persons  shipping  from  the 
same  point  of  departure  to  the  same  point  of  arrival ;  but,  even  in 
those  cases,  it  was  conceded  that  there  might  be  circumstances  of  com- 
petition which  might  be  considered.  At  any  rate,  those  cases  have 
been  much  modified,  if  not  fully  overruled,  by  the  later  cases,  par- 
ticularly in  Denaby  Main  Colliery  Co.  v.  Manchester,  Sheffield,  & 
Lincolnshire  Ry.  Co.,  11  App.  Cas.  97,  and  in  Phipps  v.  London  & 
Northwestern  Railway,  [1892]  2  Q.  B.  229,  236. 


•  TEXAS   &   PACIFIC   R.    V.    INTERSTATE   COMMERCE   COM.  579 

The  latter  was  the  case  of  an  application,  under  the  railway  and 
canal  traffic  acts,  for  an  order  enjoining  the  defendants  to  desist  from 
giving  an  undue  preference  to  the  owners  of  Butlins  and  Islip  furnaces, 
and  from  subjecting  the  traffic  of  the  complainants  to  an  undue  prefer- 
ence, in  the  matter  of  the  rates  charged  for  the  conveyance  of  coal, 
coke,  and  pig-iron  traffic,  and  also  for  an  order  enjoining  the  defend- 
ants to  desist  from  giving  an  unreasonable  preference  or  advantage  to 
the  owners  of  Butlins  and  Islip  furnaces,  and  the  traffic  therefrom,  by 
making  an  allowance  of  fourpence  per  ton  in  respect  of  coal,  coke,  and 
pig  iron  conveyed  for  them  by  the  defendants.  The  sidings  of  the 
Duston  furnaces,  belonging  to  the  complainants,  were  situated  on  the 
London  &  Northwestern  Railway,  at  a  distance  of  about  sixty  miles 
from  Great  Bridge,  one  of  the  pig-iron  markets  to  the  westward.  The 
sidings  of  the  Butlins  and  Islip  furnaces  were  situated  on  the  same  rail- 
way, to  the  east  of  the  Duston  furnaces,  and  a  distance  from  the  pig- 
iron  market,  as  to  Butlins,  of  about  seventy-one  miles,  and,  as  to  Islip, 
of  about  eighty-two  miles.  Duston  had  only  access  to  the  London  & 
Northwestern,  but  Butlins  and  Islip  had  access  not  only  to  the  London 
&  Northwestern,  but  also  to  the  Midland  Railwa}'.  The  London  & 
Northwestern  Company,  which  carried  the  Butlins  pig  iron  eleven  miles 
further,  and  the  Islip  pig  iron  twenty-two  miles  further,  than  the  Duston 
pig  iron,  charged  Butlins  0.95o?.  per  mile,  and  Islip  O.Sid,  per  mile; 
while  the}'  charged  Duston  1.05c?.  per  mile;  so  that  the  total  charge 
per  ton  of  pig  iron  from  Duston  to  the  western  markets  was  5s.  2d., 
while  the  total  charge  per  ton  from  either  Butlins  or  Islip  was  5s.  8c?. 

When  the  case  was  before  the  railway  commissioners  it  was  said  by 
Wills,  J. :  "  It  is  complained  that,  although  along  the  London  &  N.  W. 
Railway  every  ton  of  pig  iron,  every  ton  of  coal,  and  every  ton  of  coke 
travels  a  longer  distance  in  order  to  reach  Islip  than  in  order  to  reach 
the  applicant's  premises,  the  charge  that  is  put  upon  it,  although 
greater  than  the  charge  which  is  put  upon  the  traffic  which  goes  to  the 
applicant's  premises,  is  not  sufficient!}' greater  to  represent  the  increased 
distance  ...  I  6rst  observe  that  these  are,  in  my  judgment,  eminently 
practical  questions,  and  if  this  court  once  attempts  the  hopeless  task  of 
dealing  with  questions  of  this  kind  with  an\'  approach  to  mathematical 
accurac}',  and  tries  to  introduce  a  precision  which  is  unattainable  in 
commercial  and  practical  matters,  it  would  do  infinite  mischief,  and  no 
good.  ...  It  seems  to  me  that  we  must  take  into  account  the  fact  that 
at  Butlins  and  Islip  there  is  an  effective  competition  with  the  Midland. 
Although  effective  competition  with  another  railway  company  or  canal 
compan}'  will  not  of  itself  justif\"  a  preference  which  is  otherwise  quite 
beyond  the  mark,  3'et  still  it  is  not  a  circumstance  that  can  be  thrown 
out  of  the  question,  and  I  think  there  is  abundance  of  authority*  for  that 
It  follows  also,  I  think,  from  the  view  which  I  am  disposed  to  take  of 
these  —  being  eminentl}'  practical  —  questions,  that  j'ou  must  give  duo 
consideration  to  the  commercial  necessities  of  the  companies,  as  a  mat- 
ter to  be  thrown  in  along  with  the  others.  ...  I  wish  emphatically  to 


580         TEXAS   A   PACIFIC   R.   V.   INTERSTATE   COMMERCE   COM. 

be  considered  as  not  having  attempted  to  lay  down  an}-  principles  with 
regard  to  this  question  of  undue  preference,  or  as  to  the  grounds  upon 
which  I  have  decided  it.  In  my  judgment,  undue  preference  is  a  ques- 
tion of  fact  in  each  case." 

The  railway  commissioners  refused  to  interfere,  and  the  case  was  ap- 
pealed.    Lord  Herschell  stated  the  case,  and  said  :  — 

"  This  application  is  made  under  the  second  section  of  the  Railway 
and  Canal  Traffic  Act,  1854,  which  provides  that  '  no  railway  company 
shall  make  or  give  any  undue  or  unreasonable  preference  or  advantage 
to  or  in  favor  of  any  particular  person  or  company,  or  any  particular 
description  of  traffic,  in  any  respect  whatever,  nor  shall  any  such  com- 
pan}-  subject  an}-  particular  person  or  company,  or  particular  descrip- 
tion of  traffic,  to  any  undue  or  unreasonable  prejudice  or  disadvantage 
in  any  respect  whatever.' 

"  The  question,  therefore,  which  the  tribunal,  whether  it  be  the  court 
or  the  commissioners  before  whom  such  a  question  comes,  has  to  deter- 
mine, is  whether  an  undue  preference  or  advantage  is  being  given,  or 
whether  the  one  party  is  being  unduly  prejudiced  or  put  to  a  disadvan- 
tage, as  compared  with  the  other.  I  think  it  is  clear  that  the  section 
implies  that  there  may  be  a  preference,  and  that  it  does  not  make  every 
inequality  of  charge  an  undue  preference. 

'•  Of  course,  if  the  circumstances  so  differ  that  the  difference  of 
charge  is  in  exact  conformit}-  with  the  difference  of  circumstances,  there 
would  be  no  preference  at  all.  But,  as  has  been  pointed  out  befoi'e, 
what  the  section  provides  is  that  there  shall  not  be  an  undue  or  un- 
reasonable preference  or  prejudice.  And  it  cannot  be  doubted  that 
whether,  in  particular  instances,  there  has  been  an  undue  or  unreason- 
able prejudice  or  preference,  is  a  question  of  fact.  In  Palmer  v.  Lon- 
don &  Southwestern  Railway  Co.,  L.  R.  1  C.  P.  593,  Chief  Justice 
Erie  said :  '  I  beg  to  say  that  the  argument  from  authorit}'  seems  to 
me  to  be  without  conclusive  force  in  guiding  the  exercise  of  this  juris- 
diction ;  the  question  whether  undue  prejudice  has  been  caused  being  a 
question  of  fact,  depending  on  the  matters  proved  in  each  case.' 

"  In  Denaby  Main  Colliery  Co.  v.  Manchester,  &c.  Ry.  Co.,  3  Nev. 
&  McN.  426,  when  it  was  before  the  Court  of  Appeals,  on  an  appeal 
arising  out  of  the  proceedings  before  the  railway  commissioners.  Lord 
Selborne,  then  Lord  Chancellor,  said  :  '  The  defendants  gave  a  decided, 
distinct,  and  great  advantage,  as  it  appears  to  me,  to  the  distant  col- 
lieries. That  may  be  due  or  undue,  reasonable  or  unreasonable  ;  but, 
under  these  circumstances,  is  not  the  reasonableness  a  question  of  fact? 
Is  it  not  a  question  of  fact,  and  not  of  law,  whether  such  a  preference 
is  due  or  undue  ?  Unless  you  can  point  to  some  other  law  which  de- 
fines what  shall  be  held  to  be  reasonable  or  unreasonable,  it  must  be 
and  is,  a  mere  question,  not  of  law,  but  of  fact.' 

*'  The  Lord  Chancellor  there  points  out  that  the  mere  circumstance 
that  there  is  an  advantage  does  not  of  itself  show  that  it  is  an  undue  pref- 
erence, within  the  meaning  of  the  act,  and,  further,  that  whether  there  be 


TEXAS   &  PACIFIC   E.   V.  INTERSTATE   COMMERCE  COM.  581 

such  undue  preference  or  advantage  is  a  question  of  fact,  and  of  fact 
alone,  of  the  act  of  1854.  No  rule  is  given  to  guide  the  court  or  the 
tribunal  in  the  determination  of  cases  or  applications  made  under  this 
second  section.  Tlie  conclusion  is  one  of  fact,  to  be  arrived  at,  looking 
at  the  matter  broadl}-,  and  applying  common  sense  to  the  facts  that  are 
proved.  I  quite  agree  with  Mr.  Justice  Wills  that  it  is  impossible  to 
exercise  a  jurisdiction  such  as  is  conferred  b3'  this  section  by  any  pro- 
cess of  mere  mathematical  or  arithmetical  calculation.  AVhen  you 
have  a  variety  of  circumstances,  differing  in  the  one  case  from  the  othei", 
3'ou  cannot  say  that  a  difference  of  circumstances  represents  or  is  equiva- 
lent to  such  a  fraction  of  a  penny  difference  of  charge  in  the  one  case  as 
compared  with  the  other.  A  much  broader  view  must  be  taken,  and  it 
would  be  hopeless  to  attempt  to  decide  a  case  b}^  any  attempted  calcu 
lation.  I  should  say  that  the  decision  must  be  arrived  at  broadl}'  and 
fairly,  by  looking  at  all  the  circumstances  of  the  case,  — -  that  is,  look- 
ing at  all  the  circumstances  which  are  proper  to  be  looked  at,  because, 
of  course,  the  ver}'  question  in  this  case  is  whether  a  particular  circum- 
stance ought  or  ought  not  to  be  considered ;  but,  keeping  in  view  all 
the  circumstances  which  may  legitimatel}'  be  taken  into  consideration, 
then  it  becomes  a  mere  question  of  fact.  .  .  .  Now,  there  is  no  doubt 
that  in  coming  to  their  determination  the  court  below  did  have  regard 
to  competition  between  the  Midland  and  the  Northwestern,  and  the 
situation  of  these  two  furnaces  which  rendered  such  competition  inevi- 
table. If  the  appellants  can  make  out  that,  in  point  of  law,  that  is  a 
consideration  which  cannot  be  permitted  to  have  an}-  influence  at  all, 
that  those  circumstances  must  be  rigidly  excluded  from  consideration, 
and  that  they  are  not  circumstances  legitimate!}'  to  be  considered,  no 
doubt  they  establish  that  the  court  below  has  erred  in  point  of  law. 
But  it  is  necessary  for  them  to  go  as  far  as  that  in  order  to  make  any 
way  with  this  appeal,  because  once  admit  that  to  an}'  extent,  for  anj-  pur- 
pose, the  question  of  competition  can  be  allowed  to  enter  in,  whether 
the  court  has  given  too  much  weight  to  it  or  too  little  becomes  a  ques- 
tion of  fact,  and  not  of  law.  The  point  is  undoubtedly  a  very  important 
one.  .  .  . 

"As  I  have  already  observed,  the  second  section  of  the  act  of  1854 
does  not  afibrd  to  the  tribunal  any  kind  of  guide  as  to  what  is  undue  or 
unreasonable.  It  is  left  entirely  to  the  judgment  of  the  court  on  a  re- 
view of  the  circumstances.  Can  we  say  that  the  local  situation  of  one 
trader,  as  compared  with  another,  which  enables  him,  by  having  two 
competing  routes,  to  enforce  upon  the  carrier  by  either  of  these  routes 
a  certain  amount  of  compliance  with  his  demands,  which  would  be  im- 
possible if  he  did  not  enjoy  that  advantage,  is  not  among  the  circum- 
stances which  may  be  taken  into  consideration?  I  am  looking  at  the 
question  now  as  between  trader  and  trader.  It  is  said  that  it  is  unfair 
to  the  trader  who  is  nearer  the  market  that  he  should  not  enjoy  the  full 
benefit  of  the  advantage  to  be  derived  from  his  geographical  situation 
at  a  point  on  the  railway  nearer  the  market  than  his  fellow  trader  who 


582         TEXAS   &   PACIFIC   R.   V.   INTERSTATE  COMMERCE   COM. 

trades  at  a  point  more  distant ;  but  I  cannot  see,  looking  at  the  matter  as 
between  the  two  traders,  why  the  advantageous  position  of  the  one  trader, 
in  having  his  works  so  placed  that  he  has  two  competitive  routes,  is  not 
as  much  a  circumstance  to  be  taken  into  consideration  as  the  geographical 
position  of  the  other  trader,  who,  though  he  has  not  the  advantage  of 
competition,  is  situated  at  a  point  on  the  line  geographicallj-  nearer  the 
market.  Why  the  local  situation  in  regard  to  its  proximity  to  the  mar- 
ket is  to  be  the  only  consideration  to  be  taken  into  account  in  dealing 
with  the  matter,  as  a  matter  of  what  is  reasonable  and  right  as  between 
the  two  traders,  I  cannot  understand. 

"  Of  course,  if  30U  are  to  exclude  this  from  consideration  altogether, 
the  result  must  inevitably  be  to  deprive  the  trader  who  has  the  two  com- 
peting routes  of  a  certain  amount  of  the  advantages  which  he  derives 
from  that  favorable  position  of  his  works.  All  that  I  have  to  sa^-  is 
that  I  cannot  find  an3-thing  in  the  act  which  indicates  that  when  30U 
are  left  at  large,  —  for  you  are  left  at  large,  —  as  to  whether,  as  be- 
tween two  traders,  the  compan}'  is  showing  an  undue  and  unreasonable 
preference  to  the  one,  as  compared  with  the  other,  you  are  to  leave  out 
that  circumstance,  any  more  than  any  other  circumstance  which  would' 
affect  men's  minds.  .  .  .  One  class  of  cases  unquestionably  intended 
to  be  covered  by  the  section  is  that  in  which  traffic  from  a  distance,  of 
a  character  that  competes  with  the  traffic  nearer  the  market,  is  charged 
low  rates  because,  unless  such  low  rates  were  charged,  it  would  not 
come  into  the  market  at  all.  It  is  certain,  unless  some  such  principle  as 
that  were  adopted,  a  large  town  would  necessarih"  have  its  food  supply 
greatly  raised  in  price.  80  that,  although  the  object  of  the  companj-  is 
simply  to  get  the  traffic,  the  public  have  an  interest  in  their  getting  the 
traffic  and  allowing  the  carriage  at  a  rate  which  will  render  that  traffic 
possible,  and  so  bring  the  goods  at  a  cheaper  rate,  and  one  which  makes 
it  possible  for  those  at  a  greater  distance  to  compete  with  those  situate 
nearer  to  it.  ...  I  cannot  but  think  that  a  lower  rate  which  is  charged 
from  a  more  distant  point  b}'^  reason  of  a  competing  route  which  exists 
thence  is  one  of  the  cases  which  may  be  taken  into  account  under  those 
provisions,  and  which  would  fall  within  the  terras  of  the  enactment. 

"  Suppose  that  to  insist  on  absolutely  equal  rates  would  practically 
exclude  one  of  the  two  railways  from  the  traffic ;  it  is  obvious  that 
these  members  of  the  public  who  are  in  the  neighborhood  where  they 
can  have  the  benefit  of  this  competition  would  be  prejudiced  by  any  such 
proceedings.  And  further,  inasmuch  as  competition  undoubtedly  tends 
to  diminution  of  charges,  and  the  charge  of  carriage  is  one  which  ulti- 
mately falls  upon  the  consumer,  it  is  obvious  that  the  public  have  an 
interest  in  the  proceedings  under  this  act  of  Parliament  not  being  so 
used  as  to  destroy  a  traffic  which  can  never  be  secured  but  by  some 
such  reduction  of  charge,  and  the  destruction  of  which  would  be  preju- 
dicial to  the  public,  by  tending  to  increase  prices." 

The  learned  judge  then  proceeded  to  discuss  the  authorities,  and 
pointed  out  that  the  case  of  Budd  «.  London  &  Northwestern  Railway 


TEXAS   &   PACIFIC   R.    V.   INTERSTATE   COMMERCE   COM.  583 

Co. ,  and  Evershed's  Case,  are  no  longer  law,  so  far  as  the  second  sec- 
tion of  the  act  of  1854  is  concerned. 

Lindley  and  Ka}-,  Lord  Justices,  gave  concurring  opinions,  and  the 
conclusion  of  the  court  was  that  the  commissioners  did  not  err  in  taking 
'into  consideration  the  fact  that  there  was  a  competing  line  together  with 
all  the  other  facts  of  the  case,  and  in  holding  that  a  preference  or  ad- 
vantage thence  arising  was  not  undue  or  unreasonable. 

The  precise  question  now  before  us  has  never  been  decided  in  the 
American  cases,  but  there  are  several  in  which  somewhat  analogous 
questions  have  been  considered. 

Atchison,  Topeka,  &  Santa  F^  Railroad  v.  Denver  &  New  Orleans 
Railroad,  110  U.  S.  667,  was  a  case  arising  under  a  provision  of  the 
Constitution  of  the  State  of  Colorado  which  declares  "  that  all  indi- 
viduals, associations,  and  corporations  shall  have  equal  rights  to  have 
persons  and  property  transported  over  any  railroad  in  this  State,  and 
no  undue  or  unreasonable  discrimination  shall  be  made  in  charges  or 
facilities  for  transportation  of  freight  or  passengers  within  the  State, 
and  no  railroad  company  shall  give  any  preference  to  individuals,  asso- 
ciations, or  corporations  in  furnishing  cars  or  motive  power."  This 
court  held  that  under  this  constitutional  provision  a  railroad  company 
which  had  made  provisions  with  a  connecting  road  for  the  transaction 
of  joint  business  at  an  established  union  junction  was  not  required  to 
make  similar  provisions  with  a  rival  connecting  line  at  another  near 
point  on  its  line,  and  that  the  constitutional  provision  is  not  violated 
b}'  refusing  to  give  to  a  connecting  road  the  same  arrangement  as  to 
through  rates  which  are  given  to  another  connecting  line,  unless  the 
conditions  as  to  the  service  are  substantially  alike  in  both  cases. 

The  sixth  section  of  the  act  of  Congress  (July  1, 1862)  relative  to  the 
Union  Pacific  Railroad  Company  provided  that  the  government  shall  at 
all  times  have  the  preference  in  the  use  of  the  railroad,  "at  fair  and 
reasonable  rates  of  compensation,  not  to  exceed  the  amount  paid  by 
private  parties  for  the  same  kind  of  service."  In  the  case  of  Union 
Pac.  Railway  v.  U.  S.,  117  U.  S.  355,  it  was,  in  effect,  held  that  the  ser- 
vice rendered  b}'  a  railwa}-  compan}'  in  transporting  local  passengers 
from  one  point  on  its  line  to  another  is  not  identical  with  the  service 
rendered  in  transporting  through  passengers  over  the  same  rails. 

A  petition  was  filed  before  the  Interstate  Commerce  Commission  by 
the  Pittsburgh,  Cincinnati,  &  St.  Louis  Railwa}-  Conipan}'  against  the 
Baltimore  &  Ohio  Railroad  Company,  seeking  to  compel  the  latter  com- 
panj-  to  withdraw  from  its  lines  of  road,  upon  which  business  competi- 
tion with  that  of  the  petitioner  was  transacted,  the  so-called  "  party 
rates,^'  and  to  decline  to  give  such  rates  in  the  future ;  also,  for  an 
order  requiring  said  company  to  discontinue  the  practice  of  selling 
excursion  tickets  at  less  than  the  regular  rate.  The  cause  was  heard 
before  the  commission,  which  held  the  so-called  "  party  rate  tickets,"  in 
so  far  as  they  were  sold  for  lower  rates  for  each  member  of  a  party  of 
ten  or  more  than  rates  contemporaneously-  charged  for  the  transporta* 


584  TEXAS   4   PACIFIC  K.   V.   INTERSTATE   COMMERCE   COM. 

tion  of  single  passengers  between  the  same  points,  constituted  unjust 
discrimination,  and  were  therefore  illegal.  The  defendant  company  re- 
fusing to  obey  the  mandate  of  the  commission,  the  latter  filed  a  bill  in 
the  Circuit  Court  of  the  United  Slates  for  the  Southern  District  of  Ohio, 
asking  that  the  defendant  be  enjoined  from  continuing  in  its  violation  ' 
of  the  order  of  the  commission.  The  Circuit  Court  dismissed  the  bills 
Some  of  the  observations  made  by  Jackson,  Circuit  Judge,  may  well  be 
cited  (43  Fed.  37)  :  "  Subject  to  the  two  leading  prohibitions  that  their 
charges  shall  not  be  unjust  or  unreasonable,  and  that  they  shall  not 
unjustly  discriminate,  so  as  to  give  undue  preference  or  advantage, 
or  subject  to  undue  prejudice  or  disadvantage  persons  or  traffic  similarly 
circumstanced,  the  act  to  regulate  commerce  leaves  common  carriers  as 
the}'  were  at  the  cou)mon  law,  free  to  make  special  contracts  looking  to 
the  increase  of  their  business,  to  classify  their  traffic,  to  adjust  and 
apportion  their  rates  so  as  to  meet  the  necessities  of  commerce,  and 
generally  to  manage  iheir  important  interests  upon  the  same  principles 
which  are  regarded  as  sound,  and  adopted  in  other  trades  and  pursuits. 
Conceding  the  same  terms  of  contract  to  all  persons  equally,  ma}-  not 
the  carrier  adopt  both  wholesale  and  retail  rates  for  its  transportation 
service?"  Again  :  "  The  English  cases  estabhsh  the  rule  that,  in  pass- 
ing upon  the  question  of  un<lue  or  unreasonable  preference  or  disad- 
vantage, it  is  not  only  legitimate,  but  proper,  to  take  into  consideration, 
besides  the  mere  differences  in  charges,  various  elements,  such  as  the 
convenience  of  the  public,  the  fair  interests  of  the  carrier,  the  relative 
quantities  or  volume  of  the  traffic  involved,  the  relative  cost  of  the  ser- 
vices and  profit  to  the  company,  and  the  situation  and  circumstances  of 
the  respective  customers  with  reference  to  each  other,  as  competitive  or 
otherwise." 

The  case  was  brought  to  this  Couit,  and  the  judgment  of  the  Circuit 
Court  dismissing  the  bill  was  affirmed.  Interstate  Commerce  Commis- 
sion V.  Baltimore  &  Ohio  Railroad,  145  U.  S.  263.  The  court,  through 
Mr.  Justice  Brown,  cited  with  approval  passages  from  the  opinion  of 
Judge  Jackson  in  the  court  below,  and,  among  other  things,  said  :  "  It 
is  not  all  discriminations  or  preferences  that  fall  within  the  inhibition  of 
the  statute ;  only  such  as  are  unjust  and  unreasonable." 

Again,  speaking  of  the  sale  of  a  ticket  for  a  number  of  passengers 
at  a  less  rate  than  for  a  single  passenger,  it  was  said:  "  It  does  not 
operate  to  the  prejudice  of  the  single  passenger,  who  cannot  be  said  to 
be  injured  by  the  fact  that  another  is  able,  in  a  particular  instance,  to 
travel  at  a  less  rate  than  he.  If  it  operates  injuriously  to  any  one,  it  is 
to  the  rival  road,  which  has  not  adopted  corresponding  rates ;  but,  as 
before  observed,  it  was  not  the  design  of  the  act  to  stifle  competition, 
nor  is  there  any  legal  injustice  in  one  person  procuring  a  particular  ser- 
vice cheaper  than  another.  ...  If  these  tickets  were  withdrawn  the 
defendant  road  would  lose  a  large  amount  of  travel,  and  the  single-trip 
passenger  would  gain  absolutely  nothing." 

The  conclusions  that  we  draw  from  the  history  and  language  of  the 


TEXAS   &   PACIFIC   E.   V.   INTERSTATE   COMMERCE   COM.  585 

act,  and  from  the  decisions  of  our  own  and  the  English  courts,  are  mainly 
these :  that  the  purpose  of  the  act  is  to  promote  and  facilitate  com- 
merce, b}'  the  adoption  of  regulations  to  make  charges  for  transportation 
just  and  reasonable,  and  to  forbid  undue  and  unreasonable  preferences 
or  discriminations ;  that,  in* passing  upon  questions  arising  under  the 
act,  the  tribunal  appointed  to  enforce  its  provisions,  whether  the  com- 
mission or  the  courts,  is  empowered  to  fully  consider  all  the  circumstances 
and  conditions  that  reasonably  apply  to  the  situation,  and  that  in  the 
exercise  of  its  jurisdiction  the  tribunal  may  and  should  consider  the 
legitimate  interests  as  well  of  the  carrying  companies  as  of  the  traders 
and  shippers,  and,  in  considering  whether  any  particular  locality  is  sub- 
jected to  an  undue  preference  or  disadvantage,  the  welfare  of  the  com- 
munities occupying  the  localities  where  the  goods  are  delivered  is  to 
be  considered,  as  well  as  that  of  the  communities  which  are  in  the 
localit}'  of  the  place  of  shipment ;  that  among  the  circumstances  and 
conditions  to  be  considered,  as  well  in  the  case  of  traffic  originating  in 
foreign  ports  as  in  the  case  of  traffic  originating  within  the  limits  of  the 
United  States,  competition  that  affects  rates  should  be  considered,  and 
in  deciding  whether  rates  and  charges  made  at  a  low  rate  to  secure 
foreign  freights,  which  would  otherwise  go  by  other  competitive  routes, 
are  or  are  not  undue  and  unjust,  the  fair  interests  of  the  carrier  com- 
panies, and  the  welfare  of  the  community  which  is  to  receive  and  con- 
sume the  commodities,  are  to  be  considered ;  that  if  the  commission, 
instead  of  confining  its  action  to  redressing,  on  complaint  made  by 
some  particular  person,  firm,  corporation,  or  localit}',  some  specific 
disregard  by  common  carriers  of  provisions  of  the  act,  proposes  to  pro- 
mulgate general  orders,  which  thereby  become  rules  of  action  to  the 
carrying  companies,  the  spirit  and  letter  of  the  act  require  that  such 
orders  should  have  in  view  the  purpose  of  promoting  and  facilitating 
commerce,  and  the  welfare  of  all  to  be  affected,  as  well  the  carriers  as 
the  traders  and  consumers  of  the  country. 

It  maj'  be  said  that  it  would  be  impossible  for  the  commission  to 
frame  a  general  order  if  it  were  necessary-  to  enter  upon  so  wide  a  field 
of  investigation,  and  if  all  interests  that  are  liable  to  be  affected  were 
to  be  considered.  This  criticism,  if  well  founded,  would  go  to  show 
that  such  orders  are  instances  of  general  legislation,  requiring  an  exer- 
cise of  the  law  making  power,  and  that  the  general  orders  made  b}'  the 
commission  in  March,  1889,  and  January',  1891,  instead  of  being  regu- 
lations calculated  to  promote  commerce  and  enforce  the  express  pro- 
visions of  the  act,  are  themselves  laws  of  wide  import,  destroying  some 
branches  of  commerce  that  have  long  existed,  and  undertaking  to  change 
the  laws  and  customs  of  transportation  in  the  promotion  of  what  is  sup- 
posed to  be  public  policy. 

This  is  manifest  from  the  facts  furnished  us  in  the  report  and  findings 
of  the  commission,  attached  as  an  exhibit  to  the  bill  filed  in  the  Circuit 
Court. 

It  is  stated  in  that  report  that  the  Illinois  Central  Railroad  Company, 


586         TEXAS   4   TACinC  B.  V.   INTERSTATE   COMMERCE   COM. 

one  of  the  respondents  in  the  proceeding  before  the  commission,  averred 
In  its  answer  that  it  was  constrained,  b}-  its  obedience  to  the  order  of 
March,  1889,  to  decline  to  take  for  shipment  any  import  traffic,  and,  to 
its  great  detriment,  to  refrain  from  the  business,  for  the  reason  that,  to 
meet  the  action  of  the  competing  lines,  it  would  have  to  make  a  less 
rate  on  the  import  than  on  the  domestic  traffic. 

Upon  this  disclosure  that  their  order  had  resulted  in  depriving  that 
company  of  a  valuable  part  of  its  traffic,  (to  say  nothing  of  its  necessary 
effect  in  increasing  the  charges  to  be  finally  paid  by  the  consumers,) 
the  commission,  in  its  report,  naively  remarks,  "  This  lets  the  Illinois 
Central  Railway  Company  out."    4  Interst.  Commerce  Com.  R.  458. 

We  also  learn  from  the  same  source  that  there  was  competent  evi- 
dence adduced  before  the  commission,  on  the  part  of  the  Pennsylvania 
Railroad  Compauj',  that  since  that  compan} ,  in  obedience  to  the  order 
of  March,  1889,  has  charged  the  full  inland  rate  on  the  import  traffic, 
the  road's  business  in  that  particular  has  considerably  fallen  off ;  that 
the  steamship  lines  have  never  assented  to  the  road's  charging  its  full 
inland  rates,  and  have  been  making  demands  on  the  road  for  a  proper 
division  of  the  through  rate ;  that,  if  it  were  definitely'  determined  that 
the  road  was  not  at  liberty  to  charge  less  than  the  full  inland  rate,  the 
result  would  be  that  it  would  efTectuall}'  close  every  steamship  line  sail- 
ing to  and  from  Baltimore  and  Philadelphia. 

The  commission  did  not  find  it  necessary  to  consider  this  evidence, 
because  the  Pennsylvania  Railroad  Company  was  before  it  in  the  atti- 
tude of  having  obeyed  the  order. 

We  do  not  refer  to  these  matters  for  the  purpose  of  indicating  what 
conclusions  ought  to  have  been  reached  bj'  the  commission  or  by  tlie 
courts  below  in  respect  to  what  were  proper  rates  to  be  charged  by  the 
Texas  «&  Pacific  Railway  Company.  That  was  a  question  of  fact,  and, 
if  the  inquir}-  had  been  conducted  on  a  proper  basis,  we  should  not 
have  felt  inclined  to  review  conclusions  so  reached.  But  we  mention 
them  to  show  that  there  manifestly  was  error  in  excluding  facts 
and  circumstances  that  ought  to  have  been  considered,  and  that  this 
error  arose  out  of  a  misconception  of  the  purpose  and  meaning  of 
the  act. 

The  Circuit  Court  held  that  the  order  of  January  29, 1891,  was  a  law- 
ful order,  and  enjoined  the  defendant  company  from  carrying  any  article 
of  import  traffic  shipped  from  an}-  foreign  port  through  any  port  of 
entry  in  the  United  States,  or  any  port  of  entry  in  a  foreign  country 
adjacent  to  the  United  States,  upon  through  bills  of  lading,  and  destined 
to  any  place  within  the  United  States,  upon  any  other  than  the  pub- 
lished inland  tariff  covering  the  transportation  of  other  freight  of  like 
kind  over  its  line  from  such  port  of  entry  to  such  place  of  destination, 
or  from  charging  or  accepting  for  its  share  of  through  rates  upon  im- 
ported traffic  a  lower  sum  than  it  charges  or  receives  for  domestic 
traffic  of  like  kind,  to  the  same  destination,  from  the  point  at  which 
the  imported  traffic  enters  the  country. 


TEXAS   &   PACIFIC   R.   V.   INTERSTATE   COMMERCE   COM.  587 

In  treating  the  facts  of  the  case,  the  court  sajs :  "  It  must  be  con- 
ceded as  true,  for  the  purposes  of  the  present  case,  that  the  rates  for 
the  transportation  of  traffic  from  Liverpool  and  London  to  San  Francisco 
are,  in  effect,  fixed  and  controlled  hy  the  competition  of  sailing  vessels 
between  these  ports,  and  also  by  the  competition  of  steamships  and 
sailing  vessels  in  connection  with  railroads  across  the  Isthmus  of 
Panama,  none  of  which  are  in  an}-  respect  subject  to  the  act  to  regulate 
commerce.  It  must  also  be  conceded  that  the  favorable  rates  given  to 
the  foreign  traffic  are,  for  reasons  to  which  it  is  now  unnecessar\-  to 
revert,  somewhat  remunerative  to  the  defendant ;  and  it  must  also  be 
conceded  that  the  defendant  would  lose  the  foreign  traffic,  by  reason  of 
the  competition  referred  to,  and  the  revenue  derived  therefrom,  unless 
it  carries  at  the  lower  rates,  and  by  so  doing  is  enabled  to  get  part 
of  it,  which  would  otherwise  go  from  London  and  Liverpool  to  San 
Francisco,  around  the  Horn,  or  by  way  of  the  Isthmus."  Interstate 
Commerce  Commission  v.  Texas  &  Pacific  Railway,  52  Fed.  187. 

The  Circuit  Court  did  not  discuss  the  case  at  length,  either  as  to  its 
law  or  facts,  but,  in  effect,  approved  the  order  of  January  29,  1891, 
as  valid,  and  enjoined  the  defendant  company  from  disregarding  it. 

The  Circuit  Court  of  Appeals  seems  to  have  disapproved  of  the  con- 
struction put  on  the  act  b^'  the  commission.  .  .  . 

Having  thus  intimated  its  dissent  from,  or,  at  least,  its  distrust  of, 
the  view  of  the  commission,  the  court  proceeded  to  affirm  the  decree 
of  the  Circuit  Court  and  the  validit}'  of  the  order  of  the  commission, 
upon  the  ground  that,  even  if  ocean  competition  should  be  regarded  as 
creating  a  dissimilar  condition,  yet  that  in  the  present  case  the  disparity 
in  rates  was  too  great  to  be  justified  b}^  that  condition. 

This  course  proceeded,  we  think,  upon  an  erroneous  view  of  the  posi- 
tion of  the  case.  That  question  was  not  presented  to  the  consideration 
of  the  Court.  There  was  no  allegation  in  the  commission's  bill  or  peti- 
tion that  the  inland  rates  charged  by  the  defendant  company  were 
unreasonable.  That  issue  was  not  presented.  The  defendant  company 
was  not  called  upon  to  make  any  allegation  on  the  subject.  No  testi- 
mony was  adduced  by  either  party  on  such  an  issue.  What  the  com- 
mission complained  of  was  that  the  defendant  refused  to  recognize  the 
lawfulness  of  its  order ;  and  what  the  defendant  asserted,  bj-  wa}'  of 
defence,  was  that  the  order  was  invalid,  because  the  commission  kad 
avowedly  declined  to  consider  certain  "  circumstances  and  conditions," 
which,  under  a  proper  construction  of  the  act,  it  ought  to  have  con- 
sidered. 

If  the  Circuit  Court  of  Appeals  were  of  opinion  that  the  commis- 
sion, in  making  its  order,  had  misconceived  the  extent  of  its  powers, 
and  if  the  Circuit  Court  had  erred  in  affirming  the  validity  of  an  order 
made  under  such  misconception,  the  dutj'  of  the  Circuit  Court  of  Ap- 
peals was  to  reverse  the  decree,  set  aside  the  order,  and  remand  the 
cause  to  the  commission,  in  order  that  it  might,  if  it  saw  fit,  proceed 
therein  according  to  law.     The  defendant  was  entitled  to  have  its  de- 


588         TEXAS   <k   PACIFIC    R.    V.   INTERSTATE   COMMERCE   COM.- 

fence  considered,  in  the  first  instance,  at  least,  b}'  the  commission, 
upon  a  full  consideration  of  all  the  circumstances  and  conditions  upon 
which  a  legitimate  order  could  be  founded.  The  questions  whether  cer- 
tain charges  were  reasonable  or  otherwise,  whether  certain  discrimina- 
tions  were  due  or  undue,  were  questions  of  fact,  to  be  passed  upon  by 
the  commission  in  the  light  of  all  facts  duly  alleged  and  supported  by 
competent  evidence,  and  it  did  not  comport  with  the  true  scheme  of  the 
statute  that  the  Circuit  Court  of  Appeals  should  undertake,  of  its  own 
motion,  to  find  and  pass  upon  such  questions  of  fact,  in  a  case  in  the 
position  in  which  the  present  one  was. 

We  do  not,  of  course,  mean  to  imply  that  the  commission  may  not 
directly  institute  proceedings  in  a  Circuit  Court  of  the  United  States 
charging  a  common  carrier  with  disregard  of  provisions  of  the  act,  and 
that  thus  it  ma}'  become  the  duty  of  the  court  to  tr}'  the  case  in  the 
first  instance.  Nor  can  it  be  denied  that,  even  when  a  petition  is  filed 
b}'  the  commission  for  the  purpose  of  enforcing  an  order  of  its  own,  the 
court  is  authorized  to  "  hear  and  determine  the  matter  as  a  court  of 
equity,"  which  necessarily  implies  that  the  court  is  not  concluded  by 
the  findings  or  conclusions  of  the  commission  ;  yet,  as  the  act  provides 
that  on  such  hearing  the  findings  of  fact  in  the  report  of  said  commis- 
sion shall  be  prima  facie  evidence  of  the  matters  therein  stated,  we 
think  it  plain  that  if,  in  such  a  case,  the  commission  has  failed,  in  its 
proceedings,  to  give  notice  to  the  alleged  offender,  or  has  unduh'  re- 
stricted its  inquiries,  upon  a  mistaken  view  of  the  law,  the  court  ought 
not  to  accept  the  findings  of  the  commission  as  a  legal  basis  for  its  own 
action,  but  should  either  inquire  into  the  facts  on  its  own  account,  or 
send  the  case  back  to  the  commission  to  be  lawfull}'  pi'oceeded  in. 

The  mere  fact  that  the  disparity  between  the  through  and  the  local 
rates  was  considerable,  did  not,  of  itself,  warrant  the  court  in  finding 
that  such  disparity  constituted  an  undue  discrimination.  Much  less  did 
it  justifj'  the  court  in  finding  that  the  entire  difference  between  the  two 
rates  was  undue  or  unreasonable,  especiall}"  as  there  was  no  person, 
firm,  or  corporation  complaining  that  he  or  they  had  been  aggrieved  by 
such  disparity. 

The  decree  of  the  Circuit  Court  of  Appeals  is  reversed.  The  de- 
cree  of  the  Circuit  Court  is  also  reversed,  and  the  cause  is  remanded 
to  that  court,  with  directions  to  dismiss  the  bill. 

Mr.  Justice  Harlan,  with  whom  concun-ed  Mr.  Justice  Brown, 
dissenting.^ 

The  question  is  presented  whether  the  Texas  &  Pacific  Railway 
Company  can,  consistently  with  the  act  of  Congress,  charge  a  higher 
rate  for  the  transportation  of  goods  starting  from  New  Orleans  and 
destined  to  San  Francisco  than  for  the  transportation  between  the  same 
places  of  goods  of  the  same  kind  in  all  the  elements  of  bulk,  weight, 

'  Part  of  this  opinion  is  omitted.  —  Ed. 


TEXAS   &   PACIFIC   R.   V.   INTERSTATE    COMMERCE   COM.  589 

value,  and  expense  of  carriage,  brought  to  New  Orleans  from  Liverpool 
on  a  through  bill  of  lading,  and  to  be  carried  to  San  Francisco.  If  this 
question  be  answered  in  the  affirmative ;  if  all  the  railroad  companies 
whose  lines  extend  inland  from  the  Atlantic  and  Pacific  seaboards  in- 
dulge in  like  practices,  and  if  one  may  do  so,  all  maj-  and  will  do  so ; 
if  such  discrimination  by  American  railways,  having  arrangements  with 
foreign  companies,  against  goods,  the  product  of  American  skill,  enter- 
prise, and  labor,  is  consistent  with  the  act  of  Congress  —  then  the  title 
of  that  act  should  have  been  one  to  regulate  commerce  to  the  injury  of 
American  interests,  and  for  the  benefit  of  foreign  manufacturers  and 
dealers.  .  .  . 

I  am  unable  to  find  in  these  sections  an}'  authority  for  the  commis- 
sion, or  for  a  carrier  subject  to  the  provisions  of  the  act  of  Congress,  to 
take  into  consideration  the  rates  established  bj'  ocean  lines  as  affecting 
the  charges  that  an  American  carrier  may  make  for  the  transportation 
of  property  over  its  routes.  .  .   . 

Congress  intended  that  all  property'  transported  by  a  carrier  subject 
to  the  provisions  of  the  act  should  be  carried  without  an}*  discrimina- 
tion because  of  its  origin.  The  rule  intended  to  be  established  was  one 
of  equality  in  charges,  as  between  a  carrier  and  all  shippers,  in  respect 
of  like  and  contemporaneous  service  performed  by  the  carrier  over  its 
line,  between  the  same  points,  without  discrimination  based  upon  con- 
ditions and  circumstances  arising  out  of  that  carrier's  relations  with 
other  carriers  or  companies,  especiall}'  those  who  cannot  be  controlled 
by  the  laws  of  the  United  States.  .   .  . 

It  seems  to  me  that  any  other  interpretation  of  the  act  of  Congress 
puts  it  in  the  power  of  railroad  companies  which  have  established,  or 
ma}'  establish,  business  arrangements  with  foreign  companies  engaged 
in  ocean  transportation,  to  do  the  grossest  injustice  to  American  inter- 
ests. I  find  it  impossible  to  believe  that  Congress  intended  that  freight 
originating  in  Europe  or  Asia  and  transported  by  an  American  railway 
from  an  American  port  to  another  part  of  the  United  States  could 
be  given  advantages  in  the  matter  of  rates,  for  services  performed 
in  this  countr}',  which  are  denied  to  like  freight  originating  in  this 
countr}',  and  passing  over  the  same  line  of  railroad  between  the  same 
points.  To  say  that  Congress  so  intended  is  to  say  that  its  purpose 
was  to  subordinate  American  interests  to  the  interests  of  foreign  coun- 
tries and  foreign  corporations.  Such  a  result  will  necessarily  follow 
from  any  interpretation  of  the  act  that  enables  a  railroad  company  to 
exact  greater  compensation  for  the  transportation  from  an  American 
port  of  entry,  of  merchandise  originating  in  this  country,  than  is  ex- 
acted for  the  transportation  over  the  same  route  of  exactly  the  same 
kind  of  merchandise  brought  to  that  port  from  Europe  or  Asia,  on  a 
through  bill  of  lading,  under  an  arrangement  with  an  ocean  transporta- 
tion company.  Under  such  an  interpretation  the  rule  established  by 
Congress  to  secure  the  public  against  unjust  discrimination  by  carriers 
subject  to  the  provisions  of  the  Interstate  Commerce  Act  would  be  dis* 


590  TEXAS   &   PACIFIC   R.   V.  INTERSTATE  COMMERCE   COM. 

placed  b}'  a  rule  practically  established  in  foreign  countries  bj-  foreign 
companies,  acting  in  combination  with  American  railroad  corporations 
seeking,  as  might  well  be  expected,  to  increase  their  profits,  regardless 
of  the  interests  of  the  public  or  of  individuals. 

I  am  not  much  impressed  by  the  anxiety  which  the  railroad  company 
professes  to  have  for  the  interests  of  the  consumers  of  foreign  goods 
and  products  brought  to  this  country  under  an  arrangement  as  to  rates 
made  by  it  with  ocean  transportation  lines.  We  are  dealing  in  this 
case  only  with  a  question  of  rates  for  the  transportation  of  goods  from 
New  Orleans  to  San  Francisco  over  the  defendant's  railroad.  The 
consumers  at  San  Francisco,  or  those  who  ma}-  be  supplied  from  that 
city,  have  no  concern  whether  the  goods  reach  them  bj-  w&y  of  railroad 
from  New  Orleans,  or  by  water  around  Cape  Horn,  or  by  the  route 
across  the  Isthmus  of  Panama.  .  .  . 

It  is  said  that  the  Interstate  Commerce  Commission  is  entitled  to  take 
into  consideration  the  interests  of  the  carrier.  My  view  is  that  the  act 
of  Congress  prescribes  a  rule  which  precludes  the  commission  or  the 
courts  from  taking  into  consideration  any  facts  outside  of  the  inquiry, 
whether  the  carrier,  for  like  and  contemporaneous  services,  performed 
in  this  country  under  substantially'  similar  circumstances  and  conditions, 
maj'  charge  one  shipper  more  or  less  than  he  charges  another  shipper 
of  like  goods  over  the  same  route.,  and  between  the  same  points.  Un- 
doubtedly, the  carrier  is  entitled  to  reasonable  compensation  for  the 
service  it  performs.  But  the  necessity  that  a  named  carrier  shall  se- 
cure a  particular  kind  of  business  is  not  a  sufficient  reason  for  permit- 
ting it  to  discriminate  unjustly  against  American  shippers,  bj*  denying 
to  them  advantages  granted  to  foreign  shippers.  Congress  has  not 
legislated  upon  such  a  theory.  It  has  not  said  that  the  inquir}'  whether 
the  carrier  has  been  guilt}*  of  unjust  discrimination  shall  depend  upon 
the  financial  necessities  of  the  carrier.  On  the  contrary,  its  purpose 
was  to  correct  the  evils  that  had  arisen  from  unjust  discrimination  made 
by  carriers  engaged  in  interstate  commerce.  It  has  not,  I  think,  de- 
clared, nor  can  I  suppose  it  will  ever  distinctly  declare,  that  an  Ameri- 
can railway  company,  in  order  to  secure  for  itself  a  particular  business, 
and  realize  a  profit  therefrom,  may  burden  interstate  commerce  in  arti- 
cles originating  in  this  country  by  imposing  higher  rates  for  the  trans- 
portation of  such  articles  from  one  point  to  another  point  in  the  United 
States  than  it  charges  for  the  transportation  between  the  same  points, 
under  the  same  circumstances  and  conditions,  of  like  articles  originating 
in  Europe,  and  received  by  such  company  on  a  through  bill  of  lading 
issued  abroad.  Does  any  one  suppose  that  if  the  Interstate  Commerce 
bill,  as  originally  presented,  had  declared,  in  express  terms,  that  an 
American  railroad  company  might  charge  more  for  the  transportation 
of  American  freight  between  two  given  places  in  this  country  than  it 
charged  for  foreign  freight  between  the  same  points,  that  a  single  legis- 
lator would  have  sanctioned  it  by  his  vote?  Does  any  one  suppose  that 
an  American  President  would  have  approved  such  legislation?  .  .  . 


WIGHT   V.    UNITED   STATES,  591 

I  cannot  accept  this  view,  and  therefore  dissent  from  the  opinion  and 
judgment  of  the  court. 

I  aui  autliorized  by  Mr.  Justice  Brown  to  say  that  he  concurs  in  this 
opinion. 

Mr.  Chief  Justice  Fuller,  dissenting. 

In  m\'  judgment,  the  second  and  third  sections  of  the  Interstate 
Commerce  Act  are  rigid  rules  of  action,  binding  the  commission  as  well 
as  the  railway  companies.  The  similar  circumstances  and  conditions 
referred  to  in  the  act  are  those  under  which  the  traffic  of  the  railways 
is  conducted,  and  the  competitive  conditions  which  ma^^  be  taken  into 
consideration  by  the  commission  are  the  competitive  conditions  within 
the  field  occupied  by  the  carrier,  and  not  competitive  conditions  arising 
wholl}'  outside  of  it. 

I  am  therefore  constrained  to  dissent  from  the  opinion  and  judgment 
of  the  court. 


WIGHT  V.   UNITED   STATES. 
Supreme  Court  of  the  United  States,   1897. 

[167  U.  S.  512.] 

Mr.  Justice  Brevter  delivered  the  opinion  of  the  court.* 
In  order  to  induce  Mr.  Bruening  to  transfer  his  transportation  from 
a  competing  road  to  its  own  line,  the  Baltimore  &  Ohio  Railroad  Com- 
pany, through  the  defendant,  in  the  first  place,  made  an  arrangement 
by  which,  for  15  cents  per  hundred  weight,  it  would  bring  the  beer  from 
Cincinnati,  and  deliver  it  at  his  warehouse  ;  that  afterwards  this  ar- 
rangement was  changed,  and  it  delivered  the  beer  to  Mr.  Bruening  at 
its  depot,  and  allowed  him  3J  cents  per  hundred  for  carting  it  to  his 
warehouse.  As  Mr.  Bruening  had  the  benefit  of  a  siding  connection 
with  the  competing  road,  and  could  get  the  beer  delivered  over  that  road 
at  his  warehouse  for  15  cents,  it  apparently  could  not  induce  him  to 
transfer  his  business  from  the  other  I'oad  to  its  own  without  extending 
to  him  this  rebate.  During  all  this  time  it  was  carrying  beer  for  Mr. 
Wolf  from  the  same  place  of  shipment  (Cincinnati)  to  the  same  depot 
in  Pittsburg,  and  charging  him  15  cents  therefor.  Mr.  Wolf  had  no 
siding  connection  with  the  rival  road,  and  therefore  had  to  paj'  for  his 
cartage,  b}-  whichever  road  it  was  carried.  His  warehouse  was,  in  a 
direct  line,  1-10  yards  from  the  depot,  while  Mr.  Bruening's  was  172 
yards,  though  the  latter  generally  carted  the  beer  b}'  a  longer  route,  on 
account  of  the  steepness  of  the  ascent.  Now,  it  is  contended  by  the 
defendant  that  it  was  necessar}'  for  the  Baltimore  «&;  Ohio  Company  Ui 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


592  WIGHT   V.   UNITED   STATES. 

offer  this  inducement  to  Mr.  Bruening  in  order  to  get  his  business,  and 
not  necessary  to  make  the  like  offer  to  Mr.  Wolf,  because  he  would 
have  to  go  to  the  expense  of  carting,  b}'  whichever  road  he  transported  ; 
that  therefore  the  traffic  was  not  ''  under  substantially  similar  circum- 
stances and  conditions,"  within  the  terms  of  section  2.  We  are  unable 
to  concur  in  this  view.  Whatever  the  Baltimore  &  Ohio  Company 
might  lawfully  do  to  draw  business  from  a  competing  line,  whatever 
inducements  it  might  offer  to  the  customers  of  that  competing  line  to 
induce  them  to  change  their  carrier,  is  not  a  question  involved  in  this 
case.  The  wrong  prohibited  by  the  section  is  a  discrimination  between 
phippers.  It  was  designed  to  compel  ever}-  carrier  to  give  equal  rights 
to  all  shippers  over  its  own  road,  and  to  forbid  it  by  an}*  device  to  en- 
force higher  charges  against  one  than  another.  Counsel  insist  that  the 
purpose  of  the  section  was  not  to  prohibit  a  carrier  from  rendering 
more  service  to  one  shipper  than  to  another  for  the  same  charge,  but 
only  that  for  the  same  service  the  charge  should  be  equal,  and  that  the 
effect  of  this  arrangement  was  simply  the  rendering  to  Mr.  Bruening  of 
a  little  greater  service  for  the  15  cents  than  it  did  to  Mr.  Wolf.  They 
sa}-  thAt  the  section  contains  no  prohibition  of  extra  service  or  extra 
privileges  to  one  shipper  over  that  rendered  to  another.  They  ask 
whether,  if  one  shipper  has  a  siding  connection  with  the  road  of  a  car- 
rier, it  cannot  run  the  cars  containing  such  shipper's  freight  onto  that 
siding,  and  thus  to  his  warehouse,  at  the  same  rate  that  it  runs  cars  to 
its  own  depot,  and  there  delivers  goods  to  other  shippers  who  are  not 
so  fortunate  in  the  matter  of  sidings.  But  the  service  performed  in 
transporting  from  Cincinnati  to  the  depot  at  Pittsburg  was  precisel}' 
alike  for  each.  The  one  shipper  paid  15  cents  a  hundred ;  the  other, 
in  fact,  but  11^  cents.  It  is  true,  he  formallj*  paid  15  cents,  but  he 
received  a  rebate  of  3^  cents ;  and  regard  must  always  be  had  to  the 
substance,  and  not  to  the  form.  Indeed,  the  section  itself  forbids  the 
carrier,  "  directl}'  or  indirectly  by  any  special  rate,  rebate,  drawback,  or 
other  device,"  to  charge,  demand,  collect,  or  receive  from  any  person 
or  persons  a  greater  or  less  compensation,  etc.  And  section  6  of  the 
act,  as  amended  in  1889,  throws  light  upon  the  intent  of  the  statute ; 
for  it  requires  the  common  carrier,  in  publishing  schedules,  to  "  state 
separately  the  terminal  charges,  and  any  rules  or  regulations  which  in 
anj'wise  change,  affect  or  determine  any  part  or  the  aggregate  of  such 
aforesaid  rates  and  fares  and  charges."  It  was  the  purpose  of  the  sec- 
tion to  enforce  equality  between  shippers,  and  it  prohibits  any  rebate 
or  other  device  by  which  two  shippers,  shipping  over  the  same  line,  the 
same  distance,  under  the  same  circumstances  of  carriage,  are  compelled 
to  pay  different  prices  therefor. 

It  may  be  that  the  phrase,  "under  substantially  similar  circumstances 
and  conditions,"  found  in  section  4  of  the  act,  and  where  the  matter 
of  the  long  and  short  haul  is  considered,  may  have  a  broader  mean- 
ing or  a  wider  reach  than  the  same  phrase  found  in  section  2.  It 
Will  be  time  enough  to  determine  that  question  when  it  is  presented. 


INTERST.   COMMERCE  COM.  V.  DETROIT,  GRAND  HAVEN,  ETC.   R.     593 

For  this  case  it  is  enough  to  hold  that  that  phrase,  as  found  in 
section  2,  refers  to  the  matter  of  carriage,  and  does  not  include 
competition. 

We  see  no  error  in  the  record,  and  the  judgment  of  the  District 
Court  is  affirmed, 

Mr.  Justice  White  concurs  in  the  judgment. 


INTERSTATE  COMMERCE  COMMISSION  v.   DETROIT, 
GRAND   HAVEN,    &   MILWAUKEE   RAILWAY. 

Supreme  Court  op  the  United  States,  1897. 

[167  U.  S.  633.] 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. ^ 

The  petition  of  Stone  &  Carten,  retail  merchants  at  Ionia,  addressed 
to  the  Interstate  Commerce  Commission,  alleged  violations  by  the 
railway  company  of  sections  2,  3,  and  4  of  the  Interstate  Commerce 
Act. 

The  opinion  of  the  commission  sustained  the  petition  avowedly 
under  section  4  of  the  act.  .  .  . 

The  sole  complaint  urged  is  that  the  railway  company  carts  goods 
to  and  from  its  station  or  warehouse  at  Grand  Rapids  without  charg- 
ing its  customers  for  such  service,  while  its  customers  at  Ionia  are 
left  themselves  to  bring  their  goods  to  and  take  them  from  the  com- 
pany's warehouse,  and  that,  in  its  schedules  posted  and  published  at 
Grand  Rapids,  there  is  no  notice  or  statement  by  the  company  of  the 
fact  that  it  furnishes  such  cartage  free  of  charge.  These  acts  are 
claimed  to  constitute  violations  of  sections  4  and  6  of  the  Interstate 
Commerce  Act.  .  .  . 

For  a  period  of  upward  of  twenty-five  years  before  these  proceed- 
ings this  company  has  openly  and  notoriously,  at  its  own  expense, 
transferred  goods  and  merchandise  to  and  from  its  warehouse  to  the 
places  of  business  of  its  patrons  in  the  city  of  Grand  Rapids.  The 
station  of  the  company,  though  within  the  limits  of  the  city,  is  dis- 
tant, on  an  average,  1;|:  miles  from  the  business  sections  of  the  city 
where  the  traffic  of  the  places  tributary  to  the  company's  road  origi- 
nates and  terminates.   .  .  . 

Under  the  facts  as  found  and  the  concessions  as  made,  the  Com- 
mission's proposition  may  be  thus  stated.  There  is,  conventionally, 
no  difference,  as  to  distance,  between  Ionia  and  Grand  Rapids,  and 
the  same  rates  and  charges  for  like  kinds  of  property  are  projjerly 
made  in  the  case  of  both  cities.     But,  as  there  is  an  average  distance 

^  Part  of  the  opinion  is  omitted. 
38 


594     INTERST.  COMMERCE  COM.  V.  DETROIT,  GRAND  HAVEN,  E'lJ'C.  E. 

of  IJ  of  a  mile  between  the  station  at  Grand  Rapids  and  the  ware, 
houses  and  offices  of  the  shippers  and  consignees,  such  average  dis- 
tance must  be  regarded  as  part  of  the  railway  company's  line,  if  the 
company  furnishes  transportation  facilities  for  such  distance;  and  if 
it  refrains  from  making  any  charge  for  such  transportation  facilities, 
and  fails  to  furnish  tbe  same  facilities  at  Ionia,  this  is  equivalent  to 
charging  and  receiving  a  greater  compensation  in  the  aggregate  for 
the  transportation  of  a  like  kind  of  property  for  a  shorter  than  for  a 
longer  distance  over  the  same  line,  in  the  same  direction,  the  shorter 
being  included  within  the  longer  distance. 

The  Circuit  Court  of  Appeals  was  of  opinion  that  this  proposition 
is  based  on  a  false  assumption,  namel}',  that  the  distance  between 
the  company's  station  and  the  warehouses  of  the  shippers  and  con- 
signees is  part  of  the  company's  railway  line,  or  is  made  such  by  the 
act  of  the  company  in  furnishing  vehicles  and  men  to  transport  the 
goods  to  points  throughout  the  city  of  Grand  Rapids.  The  view  of 
that  court  was  that  the  railway  transportation  ends  when  the  goods 
reach  the  terminus  or  station  and  are  there  unshipped,  and  that  any- 
thing the  company  does  afterwards,  in  the  way  of  land  transporta- 
tion, is  a  new  and  distinct  service,  not  embraced  in  the  contract  for 
railway  carriage.  The  court,  in  a  learned  opinion  by  District  Judge 
Hammond,  enforced  this  view  by  a  reference  to  numerous  English 
cases,  which  hold  that  the  collecting  and  delivery  of  goods  is  a  sepa- 
rate  and  distinct  business  from  that  of  railway  carriage ;  that,  when 
railroad  companies  undertake  to  do  for  themselves  this  separate 
business,  they  thereby  are  subjected  to  certain  statutory  regulations 
and  restrictions  in  respect  to  such  separate  business;  and  that  they 
cannot  avoid  such  restrictions  by  making  a  consolidated  charge  for 
the  railway  and  cartage  service.     43  U.  S.  App.  308. 

We  agree  with  the  Circuit  Court  of  Appeals  in  thinking  that  the 
fourth  section  of  the  Interstate  Commerce  Act  has  in  view  only  the 
transportation  of  passengers  and  property  by  rail,  and  tbat,  when 
the  passengex-8  and  property  reached  and  were  discharged  from  the 
cars  at  the  company's  warehouse  or  station  at  Grand  Rapids,  for  tbe 
same  charges  as  those  received  for  similar  service  at  Ionia,  tbe  duties 
and  obligations  cast  upon  this  company  by  tbe  fourth  section  were 
fulfilled  and  satisfied.  The  subsequent  history  of  the  passengers  and 
property,  whether  carried  to  their  places  of  abode  and  of  business  by 
their  own  vehicles,  or  by  those  furnished  by  the  railway  company, 
would  not  concern  the  Interstate  Commerce  Commission.  . 

The  decree  of  the  Circuit  Court  of  Appeals  is  affirmed. 


INTERSTATE   COMMERCE   COM.    V.   ALABAMA   MID.    RAILWAY.       595 


INTERSTATE  COMMERCE  COMMISSION  v.   ALABAMA 
MIDLAND  RAILWAY. 

Supreme  Court  op  the  United  States,  1897. 

[168  U.  S.  144.] 

On  the  27th  day  of  June,  1892,  the  board  of  trade  of  Troy,  Ala., 
filed  a  complaint  before  the  Interstate  Commerce  Commission,  at 
Washington,  D.  C,  against  the  Alabama  Midland  Railway  Company 
and  the  Georgia  Central  Railroad  Company  and  their  connections; 
claiming  that,  in  the  rates  charged  for  transportation  of  property  by 
the  railroad  companies  mentioned,  and  their  connecting  lines,  there 
was  a  discrimination  against  the  town  of  Troy,  in  violation  of  the 
terms  and  provisions  of  the  Interstate  Commerce  Act  of  Congress  of 
1887. 

The  general  ground  of  complaint  was  that,  Troy  being  in  active 
competition  for  business  with  Montgomery,  the  defendant  lines  of 
railway  unjustly  discriminate  in  their  rates  against  the  former,  and 
gave  the  latter  an  undue  preference  or  advantage,  in  respect  to  certain 
commodities  and  classes  of  traffic.^  .  .  . 

The  commission,  having  heard  this  complaint  on  the  evidence 
theretofore  taken,  ordered,  on  the  15th  day  of  August,  1893,  the 
roads  participating  in  the  traffic  involved  in  this  case  "  to  cease 
and  desist"  from  charging,  demanding,  collecting,  or  receiving  any 
greater  compensation  in  the  aggregate  for  services  rendered  in  such 
transportation  than  is  specified.   .  .   . 

The  defendants  having  failed  to  heed  these  orders,  the  commission 
thereupon  filed  this  bill  of  complaint  in  the  Circuit  Court  of  the 
United  States  for  the  Middle  District  of  Alabama,  in  equity,  to  com- 
pel obedience  to  the  same. 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. 

Several  of  the  assignments  of  error  complain  of  the  action  of  the 
Circuit  Court  of  Appeals  in  not  rendering  a  decree  for  the  enforce- 
ment of  those  portions  of  the  order  of  the  Interstate  Commerce  Com- 
mission which  prescribed  rates  to  be  thereafter  charged  by  the 
defendant  companies  for  services  performed  in  the  transportation  of 
goods. 

Discussion  of  those  assignments  is  rendered  unnecessary  by  the 
recent  decisions  of  this  court,  wherein  it  has  been  held,  after  elabo- 
rate argument,  thart  Congress  has  not  conferred  upon  the  Interstate 
Commerce  Commission  the  legislative  power  of  prescribing  rates, 
either  maximum,  or  minimum,  or  absolute,  and  that,  as  it  did  not  give 
the  express  power  to  the  commission,  it  did  not  intend  to  secure  the 
same  result  indirectly,  by  empowering  that  tribunal,  after  having 

1  Part  of  the  statement  of  facts  is  omitted.  —  Ed. 


596     INTERSTATE   COMMERCE   COM.   V.   ALABAMA   MID.    RAILWAY. 

determined  what,  in  reference  to  the  past,  were  reasonable  and  just 
rates,  to  obtain  from  the  courts  a  peremptory  order  that  in  the  future 
the  railroad  companies  should  follow  the  rates  thus  determined  to 
have  been  in  the  past  reasonable  and  just.  Cincinnati,  New  Orleans, 
&  Texas  Pacific  Railway  v.  Interstate  Commerce  Commission,  162 
U.  S.  184;  Interstate  Commerce  Commission  r.  Cincinnati,  New 
Orleans,  &  Texas  Pacific  Railway,   167  U.   S.  479. 

Errors  are  likewise  assigned  to  the  action  of  the  court  in  having 
failed  and  refused  to  affirm  and  enforce  the  report  and  opinion  of  the 
commission,  wherein  it  was  found  and  decided,  among  other  things, 
that  the  defendant  common  carriers  which  participate  in  the  trans- 
portation of  class  goods  to  Troy  from  Louisville,  St.  Louis,  and 
Cincinnati,  and  from  New  York,  Baltimore,  and  other  Northeastern 
points,  and  the  defendants,  common  carriers  which  participate  in  the 
transportation  of  phosphate  rock  from  South  Carolina  and  Florida  to 
Troy,  and  the  defendants,  common  carriers  which  participate  in  the 
transportation  of  cotton  from  Troy  to  the  ports  of  New  Orleans, 
Brunswick,  Savannah,  Charleston,  West  Point,  or  Norfolk,  as  local 
shipments,  or  for  export,  have  made  greater  charges,  under  substan- 
tially similar  circumstances  and  conditions,  for  the  shorter  distance 
to  or  from  Troy  than  for  longer  distances  over  the  same  lines  in  the 
same  direction,  and  have  unjustly  discriminated  in  rates  against 
Troy,  and  subjected  said  place  and  dealers  and  shippers  therein  to 
undue  and  unreasonable  prejudice  and  disadvantage  in  favor  of 
Montgomery,  Eufaula,  Columbus,  and  other  places  and  localities, 
and  dealers  and  shippers  therein,  in  violation  of  the  provisions  of 
the  act  to  regulate  commerce. 

Whether  competition  between  lines  of  transportation  to  Mont- 
gomery, Eufaula,  and  Columbus  justifies  the  giving  to  those  cities 
a  preference  or  advantage  in  rates  over  Tro\',  and,  if  so,  whether 
such  a  state  of  facts  justifies  a  departure  from  equality  of  rates 
without  authority  from  the  Interstate  Commerce  Commission,  under 
the  proviso  to  the  fourth  section  of  the  act,  are  questions  of  con- 
struction of  the  statute,  and  are  to  be  determined  before  we  reach  the 
question  of  fact  in  this  case. 

It  is  contended  in  the  briefs  filed  on  behalf  of  the  Interstate  Com- 
mission that  the  existence  of  rival  lines  of  transportation,  and  con- 
sequently of  competition  for  the  traffic,  are  not  facts  to  be  considered 
by  the  commission  or  by  the  courts  when  determining  whether  prop- 
erty transported  over  the  same  line  is  carried  under  "  substantially 
similar  circumstances  and  conditions,"  as  that  phrase  is  found  in 
the  fourth  section  of  the  act. 

Such,  evidently,  was  not  the  construction  put  upon  this  provision 
of  the  statute  by  the  Commission  itself  in  the  present  case,  for  the 
record  discloses  that  the  Commission  made  some  allowance  for  the 
alleged  dissimilarity  of  circumstances  and  conditions,  arising  out  of 
competition  and  situation,  as  affecting  transportation  to  Montgomery 


INTERSTATE   COMMERCE   COM.   V.   ALABAMA   MID.   RAILWAY.      597 

and  Troy,  respectively,  and  that  among  the  errors  assigned  is  one 
complaining  that  the  court  erred  in  not  holding  that  the  rates  pre- 
scribed by  the  commission  in  its  order  made  due  allowance  for  such 
dissimilarity. 

So,  too,  in  In  re  Louisville  &  Nashville  Railroad,  1  Interst.  Com- 
merce Com.  R.  31,  78,  in  discussing  the  long  and  short  haul  clause,  it 
was  said  by  the  Commission,  per  Judge  Cooley,  that  "  it  is  impos- 
sible to  resist  the  conclusion  that  in  finally  rejecting  the  '  long  and 
short  haul  clause '  of  the  house  bill,  which  prescribed  an  inflexible 
rule,  not  to  be  departed  from  in  any  case,  and  retaining  in  substance 
the  fourth  section  as  it  had  passed  the  Senate,  both  houses  under- 
stood that  they  were  not  adopting  a  measure  of  strict  prohibition  in 
respect  to  charging  more  for  the  shorter  than  for  the  longer  distance, 
but  that  they  were,  instead,  leaving  the  door  open  for  exceptions  in 
certain  cases,  and,  among  others,  in  cases  where  the  circumstances 
and  conditions  of  the  traffic  were  affected  by  the  element  of  competi- 
tion, and  where  exceptions  might  be  a  necessity  if  the  competition 
was  to  continue.  And  water  competition  was,  beyond  doubt,  espe- 
cially in  view." 

It  is  no  doubt  true  that  in  a  later  case  (Railroad  Commission  of 
Georgia  v.  Clyde  S.  S.  Co.,  5  Interst.  Commerce  Com.  R.  326)  the 
commission  somewhat  modified  their  holding  in  the  Louisville  & 
Nashville  Railroad  Company  Case,  just  cited,  by  attempting  to 
restrict  the  competition  that  it  is  allowable  to  consider  to  the  cases 
of  competition  with  water  carriers,  competition  with  foreign  rail- 
roads, and  competition  with  railroad  lines  wholly  in  a  single  State ; 
but  the  principle  that  competition  in  such  cases  is  to  be  considered 
is  affirmed. 

That  competition  is  one  of  the  most  obvious  and  effective  circum- 
stances that  make  the  conditions  under  which  a  long  and  short  haul 
is  performed  substantially  dissimilar,  and  as  such  must  have  been 
in  the  contemplation  of  Congress  in  the  passage  of  the  act  to  regu- 
late commerce,  has  been  held  by  many  of  the  Circuit  Courts.  It  is 
sufficient  to  cite  a  few  of  the  number:  Ex  parte  Koehler,  31  Fed. 
315;  Missouri  Pacific  Ry.  v.  Texas  &  Pacific  Ry.,  Id.  862;  Inter- 
state Commerce  Commission  v.  Atchison,  T.  &  S.  F.  Railroad,  50 
Fed.  295 ;  Interstate  Commerce  Commission  v.  New  Orleans  &  Texas 
Pacific  Railroad,  56  Fed.  925,  943;  Behlmer  v.  Louisville  &  Nash- 
ville Railroad,  71  Fed.  835;  Interstate  Commerce  Commission  v. 
Louisville  &  Nashville  Railroad,  73  Fed.  409. 

In  construing  statutory  provisions  forbidding  railway  companies 
from  giving  any  undue  or  unreasonable  prefel-ence  or  advantage  to 
or  in  favor  of  any  particular  person  or  company,  or  any  particular 
description  of  traffic,  in  any  respect  whatever,  the  English  courts 
have  held,  after  full  consideration,  that  competition  between  rival 
lines  is  a  fact  to  be  considered,  and  that  a  preference  or  advantage 
thence  arising  is  not  necessarily  undue  or  unreasonable.     Denaby 


598      INTERSTATE  COMMERCE  COAL   V.   ALABAMA   MID.   RAILWAY. 

Main  Colliery  Co.  v,  Manchester,  Sheffield,  &  Lincolnshire  Railway, 
11  App.  Cas.  97;  Phipps  v.  London  &  Northwestern  Railway,  [1892] 
2  Q.  B.  229. 

But  the  question  whether  competition,  as  affecting  rates,  is  an 
element  for  the  Commission  and  the  courts  to  consider  in  applying 
the  provisions  of  the  act  to  regulate  commerce,  is  not  an  open  ques- 
tion in  this  court. 

In  Interstate  Commerce  Commission  v.  Baltimore  &  Ohio  Rail- 
road, 145  U.  S.  263,  it  was  said,  approving  observations  made  by 
Jackson,  Circuit  Judge  (43  Fed.  37),  that  the  act  to  regulate  com- 
merce was  "  not  designed  to  prevent  competition  between  different 
roads,  or  to  interfere  with  the  customary  arrangements  made  by  rail- 
way companies  for  reduced  fares  in  consideration  of  increased  mileage, 
where  such  reduction  did  not  operate  as  an  unjust  discrimination 
against  other  persons  travelling  over  the  road;  in  other  words,  it  was 
not  intended  to  ignore  the  principle  that  one  can  sell  at  wholesale 
cheaper  than  at  retail;  that  it  is  not  all  discriminations  or  prefer- 
ences that  fall  within  the  inhibitions  of  the  statute,  —  only  such  as 
are  unjust  or  unreasonable";  and,  accordingly,  it  was  held  that  the 
issue  by  a  railway  company,  engaged  in  interstate  commerce,  of  a 
*'  party-rate  ticket "  for  the  transportation  of  ten  or  more  persons 
from  a  place  situated  in  one  State  or  Territory  to  a  place  situated  in 
another  State  or  Territory,  at  a  rate  less  than  that  charged  to  a  single 
individual  for  a  like  transportation  on  the  same  trip,  does  not  thereby 
make  "  an  unjust  or  unreasonable  charge"  against  such  individual, 
within  the  meaning  of  the  first  section  of  the  act  to  regulate  com- 
merce, nor  make  "  an  unjust  discrimination"  against  him,  within  the 
meaning  of  the  second  section,  nor  give  "  an  undue  or  unreasonable 
preference  or  advantage  "  to  the  purchasers  of  the  party-rate  ticket, 
within  the  meaning  of  the  third  section. 

In  Texas  &  Pacific  Railway  v.  Interstate  Commerce  Commission, 
162  U.  S.  197,  it  was  held  that,  "  in  passing  upon  questions  arising 
under  the  act,  the  tribunal  appointed  to  enforce  its  provisions, 
whether  the  commission  or  the  courts,  is  empowered  to  fully  con- 
sider all  the  circumstances  and  conditions  that  reasonably  apply  to 
the  situation,  and  that,  in  the  exercise  of  its  jurisdiction,  the  tri- 
bunal may  and  should  consider  the  legitimate  interests  as  well  of 
the  carrying  companies  as  of  the  traders  and  shippers,  a^nd,  in  con- 
sidering whether  any  particular  locality  is  subjected  to  an  undue 
preference  or  disadvantage,  the  welfare  of  the  communities  occupy- 
ing the  localities  where  the  goods  are  delivered  is  to  be  considered  as 
well  as  that  of  the  communities  which  are  in  the  locality  of  the  place 
of  shipment;  that  among  the  circumstances  and  conditions  to  be 
considered,  as  well  in  the  case  of  traffic  originating  in  foreign  ports 
as  in  the  case  of  traffic  originating  within  the  limits  of  the  United 
States,  competition  that  affects  rates  should  be  considered,  and  in  de- 
ciding whether  rates  and  charges,  made  at  a  low  rate  to  secure  foreign 


INTERSTATE   COMMERCE   COM.   V.   ALABAMA   MID.   RAILWAY.      599 

freights  which  would  otherwise  go  by  other  competitive  routes,  are 
or  are  not  undue  and  unjust,  the  fair  interests  of  the  carrier  com- 
panies and  the  welfare  of  the  community  which  is  to  receive  and 
consume  the  commodities  are  to  be  considered." 

To  prevent  misapprehension,  it  should  be  stated  that  the  conclu- 
sion to  which  we  are  led  by  these  cases,  that,  in  applying  the  pro- 
visions of  the  third  and  fourth  sections  of  the  act,  which  make  it 
unlawful  for  common  carriers  to  make  or  give  any  undue  or  unrea-  • 
sonable  preference  or  advantage  to  any  particular  person  or  locality, 
or  to  charge  or  receive  any  greater  compensation  in  the  aggregate 
for  the  transportation  of  passengers  or  of  like  kind  of  property, 
under  substantially  similar  circumstances  and  conditions,  for  a 
shorter  than  for  a  longer  distance  over  the  same  line,  in  the  same 
direction,  competition  which  affects  rates  is  one  of  the  matters  to 
be  considered,  is  not  applicable  to  the  second  section  of  the 
act. 

As  we  have  shown  in  the  recent  case  of  Wight  v.  U.  S.,  167  U.  S. 
512,  the  purpose  of  the  second  section  is  to  enforce  equality  between 
shippers  over  the  same  line,  and  to  pi'ohibit  any  rebate  or  other  de- 
vice by  which  two  shippers,  shipping  over  the  same  line,  the  same 
distance,  under  the  same  circumstances  of  carriage,  are  compelled 
to  pay  different  prices  therefor;  and  we  there  held  that  the  phrase, 
*'  under  substantially  similar  circumstances  and  conditions,"  as  used 
in  the  second  section,  refers  to  the  matter  of  carriage,  and  does  not 
include  competition  between  rival  routes. 

This  view  is  not  open  to  the  criticism  that  different  meanings  are 
attributed  to  the  same  words  when  found  in  different  sections  of  the 
act;  for  what  we  hold  is  that,  as  the  purposes  of  the  several  sections 
are  different,  the  phrase  under  consideration  must  be  read,  in  the 
second  section,  as  restricted  to  the  case  of  shippers  over  the  same 
road,  thus  leaving  no  room  for  the  operation  of  competition,  but  that 
in  the  other  sections,  which  cover  the  entire  tract  of  interstate  and 
foreign  commerce,  a  meaning  must  be  given  to  the  phrase  wide 
enough  to  include  all  the  facts  that  have  a  legitimate  bearing  on  the 
situation,  among  which  we  find  the  fact  of  competition  when  it 
affects  rates. 

In  order  further  to  guard  against  any  misapprehension  of  the  scope 
of  our  decision,  it  may  be  well  to  observe  that  we  do  not  hold  that 
the  mere  fact  of  competition,  no  matter  what  its  character  or  extent, 
necessarily  relieves  the  carrier  from  the  restraints  of  the  third  and 
fourth  sections,  but  only  that  these  sections  are  not  so  stringent  and 
imperative  as  to  exclude  in  all  cases  the  matter  of  competition  from 
consideration,  in  determining  the  questions  of  "  undue  or  unreason- 
able preference  or  advantage,"  or  what  are  "  substantially  similar 
circumstances  and  conditions."  The  competition  may  in  some  cases 
be  such  as,  having  due  regard  to  the  interests  of  the  public  and  of 
the  carrier,  ought  justly  to  have  effect  upon  the  rates,  and  in  such 


600      INTERSTATE   COMMERCE   COM.    V.   ALABAMA  MID.    RAILWAY 

cases  there  is  no  absolute  rule  which  prevents  the  commission  or  the 
courts  from  taking  that  matter  into  consideration. 

It  is  further  contended,  on  behalf  of  the  appellant,  that  the  courts 
below  erred  in  holding,  in  effect,  that  competition  of  carrier  with 
carrier,  both  subject  to  the  act  to  regulate  commerce,  will  justify  a 
departure  from  the  rule  of  the  fourth  section  of  the  act  without 
authority  from  the  Interstate  Commerce  Commission,  under  the  pro- 
viso to  that  section. 

In  view  of  the  conclusion  hereinbefore  reached,  the  proposition 
comes  to  this :  that  when  circumstances  and  conditions  are  substan- 
tially dissimilar  the  railway  companies  can  only  avail  themselves  of 
such  a  situation  by  an  application  to  the  commission. 

The  language  of  the  proviso  is  as  follows:  — 

"That  upon  application  to  the  Commission  appointed  under  the 
provisions  of  this  act,  such  common  carrier  may,  in  special  cases, 
after  investigation  by  the  Commission,  be  authorized  to  charge  less 
for  longer  than  shorter  distances  for  the  transportation  of  persons  or 
property,  and  the  Commission  may  from  time  to  time  prescribe  the 
extent  to  which  such  designated  common  carrier  may  be  relieved  from 
the  operation  of  this  section  of  this  act." 

The  claim  now  made  for  the  Commission  is  that  the  only  body 
which  has  the  power  to  relieve  railroad  companies  from  the  operation 
of  the  long  and  short  haul  clause  on  account  of  the  existence  of  com- 
petition, or  any  other  similar  element  which  would  make  its  applica- 
tion unfair,  is  the  Commission  itself,  which  is  bound  to  consider  the 
question,  upon  application  by  the  railroad  company,  but  whose  de- 
cision is  discretionary  and  unreviewable. 

The  first  observation  that  occurs  on  this  proposition  is  that  there 
appears  to  be  no  allegation  in  the  bill  or  petition  raising  such  an 
issue.  The  gravamen  of  the  complaint  is  that  the  defendant  com- 
panies have  continued  to  charge  and  collect  a  greater  compensation 
for  services  rendered  in  transportation  of  property  than  is  prescribed 
in  the  order  of  the  Commission.  It  was  not  claimed  that  the  defend- 
ants were  precluded  from  showing  in  the  courts  that  the  difference  of 
rates  complained  of  was  justified  by  dissimilarity  of  circumstances 
and  conditions,  by  reason  of  not  having  applied  to  the  Commission 
to  be  relieved  from  the  operation  of  the  fourth  section. 

Moreover,  this  view  of  the  scope  of  the  proviso  to  the  fourth  sec- 
tion does  not  appear  to  have  ever  been  acted  upon  or  enforced  by  the 
Commission.  On  the  contrary,  in  the  case  of  In  re  Louisville  &  Nash- 
ville Railroad  v.  Interstate  Commerce  Commission,  1  Interst.  Com- 
merce Com,  R.  31,  57,  the  Commission,  through  Judge  Cooley,  said, 
in  speaking  of  the  effect  of  the  introduction  into  the  fourth  section 
of  the  words,  "  under  substantially  similar  circumstances  and  condi- 
tions," and  of  the  meaning  of  the  proviso:  "  That  which  the  act  does 
not  declare  unlawful  must  remain  lawful,  if  it  was  so  before;  and 
that  which  it  fails  to  forbid  the  carrier  is  left  at  liberty  to  do.  with- 


INTERSTATE    COMMERCE   COM.   V.   ALABAMA    MID.    RAILWAY.       601 

out  permission  of  any  one.  .  .  .  The  charging  or  receiving  the 
greater  compensation  for  the  shorter  than  for  the  longer  haul  is  seen 
to  be  forbidden  only  when  both  are  under  substantially  similar  cir- 
cumstances and  conditions;  and  therefore,  if  in  any  case  the  carrier, 
without  first  obtaining  an  order  of  relief,  shall  depart  from  the  gen- 
eral rule,  its  doing  so  will  not  alone  convict  it  of  illegality,  since, 
if  the  circumstances  and  conditions  of  the  two  hauls  are  dissimilar, 
the  statute  is  not  violated.  .  .  .  Beyond  question,  the  carrier  must 
judge  for  ilaeif  what  are  the  '  substantially  similar  circumstances  and 
conditions'  which  preclude  the  special  rate,  rebate,  or  drawback 
which  is  made  unlawful  by  the  second  section,  since  no  tribunal  is 
empowered  to  judge  for  it  until  after  the  carrier  has  acted,  and  then 
only  for  the  purpose  of  determining  whether  its  action  constitutes  a 
violation  of  law.  The  carrier  judges  on  peril  of  the  consequences, 
but  the  special  rate,  rebate,  or  drawback  which  it  grants  is  not  ille- 
gal when  it  turns  out  that  the  circumstances  and  conditions  were  not 
such  as  to  forbid  it;  and,  as  Congress  clearly  intended  this,  it  must 
also,  when  using  the  same  words  in  the  fourth  section,  have  intended 
that  the  carrier  whose  privilege  was  in  the  same  way  limited  by  them 
should  in  the  same  way  act  upon  its  judgment  of  the  limiting  cir- 
cumstances and  conditions." 

The  view  thus  expressed  has  been  adopted  in  several  of  the  Circuit 
Courts.  Interstate  Commerce  Commission  v.  Atchison,  Topeka,  &c. 
Railroad,  50  Fed.  295,  300;  Interstate  Commerce  Commission  v.  Cin- 
cinnati, N.  O.  &  Tex.  Pac.  Ry.,  56  Fed.  925,942;  Behlmer  v.  Louisville 
&,  Nashville  Railroad,  71  Fed.  835,  839,  And  we  do  not  think  the 
courts  below  erred  in  following  it  in  the  present  case.  We  are  unable 
to  suppose  that  Congress  intended,  by  the  fourth  section  and  the  pro- 
viso thereto,  to  forbid  common  carriers,  in  cases  where  the  circum- 
stances and  conditions  are  substantially  dissimilar,  from  making 
different  rates  until  and  unless  the  Commission  shall  authorize  them 
so  to  do.  Much  less  do  we  think  that  it  was  the  intention  of  Con- 
gress that  the  decision  of  the  Commission,  if  applied  to,  could  not 
be  reviewed  by  the  courts.  The  provisions  of  section  16  of  the  act, 
which  authorize  the  court  to  "  proceed  to  hear  and  determine  the 
matter  speedily  as  a  court  of  equity,  and  without  the  formal  plead- 
ings and  proceedings  applicable  to  ordinary  suits  in  equity,  but  in 
such  manner  as  to  do  justice  in  the  premises,  and  to  this  end  such 
court  shall  have  power,  if  it  think  fit,  to  direct  and  prosecute  in  such 
mode  and  by  such  persons  as  it  may  appoint,  all  such  inquiries  as 
the  court  may  think  needful  to  enable  it  to  form  a  just  judgment  in 
the  matter  of  such  petition,"  extend  as  well  to  an  inquiry'  or  proceed- 
ing under  the  fourth  section  as  to  those  arising  under  the  other  sec- 
tions of  the  act. 

Upon  these  conclusions,  that  competition  between  rival  routes  is 
one  of  the  matters  which  may  lawfully  be  considered  in  making  rates, 
and  that  substantial  dissimilaritv  of  circumstances  and  conditions 


602      INTERSTATE  COMMERCE   COM.   V.   ALABAMA   MID.    RAILWAY. 

may  justify  common  carriers  in  charging  greater  compensation 
for  the  transportation  of  like  kinds  of  property  for  a  shorter  than 
for  a  longer  distance  over  the  same  line,  we  are  brought  to  con- 
sider whether,  upon  the  evidence  in  the  present  case,  the  courts 
below  erred  in  dismissing  the  Interstate  Commerce  Commission's 
complaint. 

As  the  third  section  of  the  act,  which  forbids  the  making  or  giv- 
ing any  undue  or  unreasonable  preference  or  advantage  to  any  par- 
ticular person  or  locality,  does  not  define  what,  under  that  section, 
shall  constitute  a  preference  or  advantage  to  be  undue  or  unreason- 
able, and  as  the  fourth  section,  which  forbids  the  charging  or  re- 
ceiving greater  compensation  in  the  aggregate  for  the  transportation 
of  like  kinds  of  property  for  a  shorter  than  for  a  longer  distance 
over  the  same  line,  under  substantially  similar  circumstances  and 
conditions,  does  not  define  or  describe  in  what  the  similarity  or  dis- 
similarity of  circumstances  and  conditions  shall  consist,  it  cannot  be 
doubted  that  whether,  in  particular  instances,  there  has  been  an 
undue  or  unreasonable  prejudice  or  preference,  or  whether  the  cir- 
cumstances and  conditions  of  the  carnage  have  been  substantially 
similar  or  otherwise,  are  questions  of  fact,  depending  on  the  matters 
proved  in  each  case.  Denaby  Main  Colliery  Co.  v.  Manchester,  &c. 
Ry.  Co.,  3  Railway  &  Can.  Cas.  426;  Phipps  v.  London  &  North- 
western Railway,  [1892]  2  Q.  B.  229;  Cincinnati,  N.  O.  &  Tex. 
Pac.  Ry.  V.  Interstate  Commerce  Commission,  162  U.  S.  184,  194; 
Texas  &  Pacific  Railway  v.  Interstate  Commerce  Commission,  162 
U.  S.   197,   235. 

The  Circuit  Court,  after  a  consideration  of  the  evidence,  expressed 
its  conclusion  thus:  — 

"  In  any  aspect  of  the  case,  it  seems  impossible  to  consider  this 
complaint  of  the  board  of  trade  of  Troy  against  the  defendant  rail- 
road companies,  particularly  the  Midland  and  Georgia  Central  Rail- 
roads, in  the  matter  of  the  charges  upon  property  transported  on  their 
roads  to  or  from  points  east  or  west  of  Troy,  as  specified  and  com- 
plained of,  obnoxious  to  the  fourth  or  any  other  section  of  the  Inter- 
state Commerce  Act.  The  conditions  are  not  substantially  the  same, 
and  the  circumstances  are  dissimilar,  so  that  the  case  is  not  within 
the  statute.  The  case  made  here  is  not  the  case  as  it  was  made  be- 
fore the  Commission.  New  testimony  has  been  taken,  and  the  con- 
clusion reached  is  that  the  bill  is  not  sustained;  that  it  should  be 
dismissed;  and  it  is  so  ordered."     69  Fed.  227. 

The  Circuit  Court  of  Appeals,  in  affirming  the  decree  of  the  Cir- 
cait  Court,  used  the  following  language:  — 

'*  Only  two  railroads,  the  Alabama  Midland  and  the  Georgia  Cen- 
tral, reach  Troy.  Each  of  these  roads  has  connection  with  other 
lines,  parties  hereto,  reaching  all  the  long-distance  markets  men- 
tioned in  these  proceedings.  The  commission  finds  that  no  depart- 
ure from  the  long  and  short  haul  rule  of  the  fourth  section  of  the 


INTERSTATE   COMMERCE   COM.   V,   ALABAMA   MID.   RAILWAY.      603 

statute,  as  against  Troy,  as  the  shorter  distance  point,  and  in  favor 
of  Montgomery,  as  the  longer  distance  point,  appears  to  be  charge- 
able to  the  Georgia  Central.  The  rates  in  question,  when  separately 
considered,  are  not  unreasonable  or  unjust.  As  a  matter  of  business 
necessity,  they  are  the  same  by  each  of  the  railroads  that  reach  Troy. 
The  Commission  concludes  that  as  related  to  the  rates  to  Mont- 
gomery, Columbus,  and  Eufaula  the  rates  to  and  from  Troy  unjustly 
discriminate  against  Troy,  and,  in  the  case  of  the  Alabama  Midland, 
violate  the  long  and  short  haul  rule. 

"  The  population  and  volume  of  business  at  Montgomery  are 
many  times  larger  than  at  Troy.  There  are  many  more  railway 
lines  running  to  and  through  Montgomery,  connecting  with  all  the 
distant  markets.  The  Alabama  River,  open  all  the  year,  is  capable, 
if  need  be,  of  bearing  to  Mobile,  on  the  sea,  the  burden  of  all  the 
goods  of  every  class  that  pass  to  or  from  Montgomery.  The  compe- 
tition of  the  railway  lines  is  not  stifled,  but  is  fully  recognized, 
intelligently  and  honestly  controlled  and  regulated,  by  the  traflflc 
association,  in  its  schedule  of  rates.  There  is  no  suggestion  in  the 
evidence  that  the  traffic  managers  who  represent  the  carriers  that  are 
members  of  that  association  are  incompetent,  or  under  the  bias  of 
any  personal  preference  for  Montgomery  or  prejudice  against  Troy, 
that  has  led  them,  or  is  likely  to  lead  them,  to  unjustly  discriminate 
against  Troy.  When  the  rates  to  Montgomery  were  higher  a  few 
years  ago  than  now,  actual  active  water  line  competition  by  the  river 
came  in,  and  the  rates  were  reduced  to  the  level  of  the  lowest  prac- 
tical paying  water  rates ;  and  the  volume  of  carriage  by  the  river  is 
now  comparatively  small,  but  the  controlling  power  of  that  water  line 
remains  in  full  force,  and  must  ever  remain  in  force  as  long  as  the 
river  remains  navigable  to  its  present  capacity.  And  this  water  line 
affects,  to  a  degree  less  or  more,  all  the  shipments  to  or  from  Mont- 
gomery from  or  to  all  the  long-distance  markets.  It  would  not  take 
cotton  from  Montgomery  to  the  South  Atlantic  ports  for  export^  but 
it  would  take  the  cotton  to  the  points  of  its  ultimate  destination,  if 
the  railroad  rates  to  foreign  marts  through  the  Atlantic  ports  were 
not  kept  down  to  or  below  the  level  of  profitable  carriage  by  wate"* 
from  Montgomery  through  the  port  of  Mobile.  The  volume  of  trade 
to  be  competed  for,  the  number  of  carriers  actually  competing  for  it, 
a  constantly  open  river  present  to  take  a  large  part  of  it  whenever 
the  railroad  rates  rise  up  to  the  mark  of  profitable  water  carriage, 
seem  to  us,  as  they  did  to  the  Circuit  Court,  to  constitute  circum- 
stances and  conditions  at  Montgomery  substantially  dissimilar  from 
those  existing  at  Troy,  and  to  relieve  the  carriers  from  the  charges 
preferred  against  them  by  the  Board  of  Trade.  We  do  not  discuss 
the  third  and  fourth  contention  of  the  counsel  for  the  appellant, 
further  than  to  say  that  within  the  limits  of  the  exercise  of  intelli- 
gent good  faith  in  the  conduct  of  their  business,  and  subject  to  the 
two  leading  prohibitions  that  their  charges  shall  not  be  unjust  or 


604      INTERSTATE   COMMERCE   COM.   V.   ALABAMA   MID.   RAILWAY. 

unreasonable,  and  that  they  shall  not  unjustly  discriminate  so  as^to 
give  undue  preference  or  disadvantage  to  persons  or  traffic  similarly 
circumstanced,  the  act  to  regulate  commerce  leaves  common  carriers, 
as  they  were  at  the  common  law,  free  to  make  special  rates  looking 
to  the  increase  of  their  business,  to  classify  their  traffic,  to  adjust 
and  apportion  their  rates  so  as  to  meet  the  necessities  of  commerce 
and  of  their  own  situation  and  relation  to  it,  and  generally  to  man- 
age their  important  interests  upon  the  same  principles  which  are 
regarded  as  sound,  and  adopted,  in  other  trades  and  pursuits.  The 
carriers  are  better  qualified  to  adjust  such  matters  than  any  court  or 
board  of  public  administration,  and,  within  the  limitations  sug- 
gested, it  is  safe  and  wise  to  leave  to  their  traffic  managers  the  ad- 
justing of  dissimilar  circumstances  and  conditions  to  their  business." 
41  U.  S.  App.  453. 

The  last  sentence  in  this  extract  is  objected  to  by  the  commission's 
counsel,  as  declaring  that  the  determination  of  the  extent  to  which 
discrimination  is  justified  by  circumstances  and  conditions  should  be 
left  to  the  carriers.  If  so  read,  we  should  not  be  ready  to  adopt  or 
approve  such  a  position.  But  we  understand  the  statement,  read  in 
the  connection  in  which  it  occurs,  to  mean  only  that,  when  once  a 
substantial  dissimilarity  of  circumstances  and  conditions  has  been 
made  to  appear,  the  carriers  are,  from  the  nature  of  the  question, 
better  fitted  to  adjust  their  rates  to  suit  such  dissimilarity  of  circum- 
stances and  conditions  than  courts  or  commissions;  and  when  we 
consider  the  difficulty,  the  practical  impossibility,  of  a  court  or  a 
commission  taking  into  view  the  various  and  continually  changing 
facts  that  bear  upon  the  question,  and  intelligently  regulating  rates 
and  charges  accordingly,  the  observation  objected  to  is  manifestly 
just.  But  it  does  not  mean  that  the  action  of  the  carriers,  in  fixing 
and  adjusting  the  rates,  in  such  instances,  is  not  subject  to  revision 
by  the  Commission  and  the  courts,  when  it  is  charged  that  such  action 
has  resulted  in  rates  unjust  or  unreasonable,  or  in  unjust  discrimina- 
tions and  preferences.  And  such  charges  were  made  in  the  present 
case,  and  were  considered,  in  the  first  place  by  the  commission, 
and  afterwards  by  the  Circuit  Court  and  by  the  Circuit  Court  of 
Appeals. 

The  first  contention  we  encounter  upon  this  branch  of  the  case  is 
that  the  Circuit  Court  had  no  jurisdiction  to  review  the  judgment 
of  the  Commission  upon  this  question  of  fact;  that  the  court  is 
only  authorized  to  inquire  whether  or  not  the  Commission  has 
misconstrued  the  statute,  and  thereby  exceeded  its  power;  that 
there  is  no  general  jurisdiction  to  take  evidence  upon  the  merits 
of  the  original  controversy;  and,  especially,  that  questions  under 
the  third  section  are  questions  of  fact,  and  not  of  power,  and  hence 
unreviewable. 

We  think  this  contention  is  sufficiently  answered  by  simply  refer- 
ring to  those  portions  of  the  act  which  provide  that,  when  the  court 


INTERSTATE   COMMERCE   COM.   V.   ALABAMA  MID.   RAILWAY.       605 

is  invoked  by  the  Commission  to  enforce  its  lawful  orders  or  require- 
ments, the  court  shall  proceed,  as  a  court  of  equity,  to  hear  and 
determine  the  matter,  and  in  such  manner  as  to  do  justice  in  the 
premises. 

In  the  case  of  Cincinnati,  N.  O.  &  Texas  Pac.  Railway  v.  Inters 
state  Commerce  Commission,  162  U.  S.  184,  the  findings  of  the 
commission  were  overruled  by  the  Circuit  Court,  after  additional  evi- 
dence taken  in  the  court,  and  the  decision  of  the  Circuit  Court  was 
reviewed  in  the  light  of  the  evidence,  and  reversed,  by  the  Circuit 
Court  of  Appeals ;  and  this  court,  in  reference  to  the  argument  that 
the  commission  had  not  given  due  weight  to  the  facts  that  tended  to 
show  that  the  circumstances  and  conditions  were  so  dissimilar  as  to 
justify  the  rates  charged,  held  that,  as  the  question  was  one  of  fact, 
peculiarly  within  the  province  of  the  commission,  and  as  its  con- 
clusions had  been  accepted  and  approved  by  the  Circuit  Court  of 
Appeals,  and  as  this  court  found  nothing  in  the  record  that  made  it 
our  duty  to  draw  a  different  conclusion,  the  decree  of  the  Circuit 
Court  of  Appeals  should  be  affirmed.  Such  a  holding  clearly  implies 
that  there  was  power  in  the  courts  below  to  consider  and  apply  the 
evidence,  and  in  this  court  to  review  their  decisions. 

So  in  the  case  of  Texas  «fe  Pacific  Railway  v.  Interstate  Commerce 
Commission,  162  U.  S.  197,  the  decision  of  the  Circuit  Court  of 
Appeals,  which  affirmed  the  validity  of  the  order  of  the  commission, 
upon  the  ground  that,  even  if  ocean  competition  should  be  regarded 
as  creating  a  dissimilar  condition,  yet  that  in  the  case  under  consid- 
eration the  disparity  in  rates  was  too  great  to  be  justified  by  that 
condition,  was  reversed  by  this  court,  not  because  the  Circuit  Court 
had  no  jurisdiction  to  consider  the  evidence,  and  thereupon  to  affirm 
the  validity  of  the  order  of  the  commission,  but  because  that  issue 
was  not  actually  before  the  court,  and  that  no  testimony  had  been 
adduced  by  either  party  on  such  an  issue;  and  it  was  said  that  the 
language  of  the  act,  authorizing  the  court  to  hear  and  determine  the 
matter  as  a  case  of  equity,  "  necessarily  implies  that  the  court  is  not 
concluded  by  the  findings  or  conclusions  of  the  Commission." 

Accordingly  our  conclusion  is  that  it  was  competent,  in  the  pres- 
ent case,  for  the  Circuit  Court,  in  dealing  with  the  issues  raised  by 
the  petition  of  the  Commission  and  the  answers  thereto,  and  for  the 
Circuit  Court  of  Appeals  on  the  appeal,  to  determine  the  case  upon 
a  consideration  of  the  allegations  of  the  parties,  and  of  the  evidence 
adduced  in  their  support;  giving  effect,  however,  to  the  findings  of 
fact  in  the  report  of  the  Commission,  as  prima  facie  evidence  of  the 
matters  therein  stated. 

It  has  been  uniformly  held  by  the  several  Circuit  Courts  and  the 
Circuit  Courts  of  Appeal,  in  such  cases,  that  they  are  not  restricted 
to  the  evidence  adduced  before  the  commission,  nor  to  a  considera- 
tion merely  of  the  power  of  the  commission  to  make  the  particular 
order  under  question,  but  that  additional  evidence  may  be  put  in  by 


606      INTERSTATE   COMMERCE   COM.   V.   ALABAMA   MID.   RAILWAY. 

either  party,  and  that  the  duty  of  the  court  is  to  decide,  as  a  court 
of  equity,  upon  the  entire  body  of  evidence. 

Coming  at  last  to  the  questions  of  fact  in  this  case,  we  encounter 
a  large  amount  of  conflicting  evidence.  It  seems  undeniable,  as  the 
effect  of  the  evidence  on  both  sides,  that  an  actual  dissimilarity  of 
circumstances  and  conditions  exists  between  the  cities  concerned, 
both  as  respects  the  volume  of  their  respective  trade  and  the  compe- 
tition, affecting  rates,  occasioned  by  rival  routes  by  land  and  water. 
Indeed,  the  Commission  itself  recognized  such  a  state  of  facts,  by 
making  an  allowance  in  the  rates  prescribed  for  dissimilarity  re- 
sulting from  competition;  and  it  was  contended  on  behalf  of  the 
Commission,  both  in  the  courts  below  and  in  this  court,  that  the 
competition  did  not  justify  the  discriminations  against  Troy  to 
the  extent  shown,  and  that  the  allowance  made  therefor  by  the  Com- 
mission was  a  due  allowance. 

The  issue  is  thus  restricted  to  the  question  of  the  preponderance 
of  the  evidence  on  the  respective  sides  of  the  controversy.  We  have 
read  the  evidence  disclosed  by  the  record,  and  have  endeavored  to 
weigh  it  with  the  aid  of  able  and  elaborate  discussions  by  the  re- 
spective counsel. 

No  useful  purpose  would  be  served  by  an  attempt  to  formally  state 
and  analyze  the  evidence,  but  the  result  is  that  we  are  not  convinced 
that  the  courts  below  erred  in  their  estimate  of  the  evidence,  and 
that  we  perceive  no  error  in  the  principles  of  law  on  which  they  pro- 
ceeded in  the  application  of  the  evidence. 

The  decree  of  the  Circuit  Court  of  Appeals  is  accordingly 

Affirmed. 

Ml*.  Justice  Harlan,  dissenting.  —  I  dissent  from  the  opinion  and 
judgment  in  this  case.  Taken  in  connection  with  other  decisions 
defining  the  powers  of  the  Interstate  Commerce  Commission,  the 
present  decision,  it  seems  to  me,  goes  far  to  make  that  Commission 
a  useless  body,  for  all  practical  purposes,  and  to  defeat  many  of  the 
important  objects  designed  to  be  accomplished  by  the  various  enact- 
ments of  Congress  relating  to  interstate  commerce.  The  Commission 
was  established  to  protect  the  public  against  the  improper  practices 
of  transportation  companies  engaged  in  commerce  among  the  several 
States.  It  has  been  left,  it  is  true,  with  power  to  make  reports  and 
to  issue  protests.  But  it  has  been  shorn,  by  judicial  interpretation, 
of  authority  to  do  anything  of  an  effective  character.  It  is  denied 
many  of  the  powers  which,  in  my  judgment,  were  intended  to  be  con- 
ferred upon  it.  Besides,  the  acts  of  Congress  are  now  so  construed 
as  to  place  communities  on  the  lines  of  interstate  commerce  at  the 
mercy  of  competing  railroad  companies  engaged  in  such  commerce. 
The  judgment  in  this  case,  if  I  do  not  misapprehend  its  scope  and 
effect,  proceeds  upon  the  ground  that  railroad  companies,  when  com- 
petitors for  interstate  business  at  certain  points,  may,  in  order  to 


INTERSTATE   COMMERCE  COM.   V.   ALABAMA  MID.   RAILWAY.      607 

secure  traffic  for  and  at  those  points,  establish  rates  that  will  enable 
them  to  accomplish  that  result,  although  such  rates  may  discriminate 
against  intermediate  points.  Under  such  an  interpretation  of  the 
statutes  in  question,  they  may  well  be  regarded  as  recognizing  the 
authority  of  competing  railroad  companies  engaged  in  interstate 
commerce  —  when  their  interests  will  be  subserved  thereby  —  to  build 
up  favored  centres  of  population  at  the  expense  of  the  business  of 
the  country  at  large.  I  cannot  believe  that  Congress  intended  any 
such  result,  nor  do  I  think  that  its  enactments,  properly  interpreted, 
would  lead  to  such  a  result. 


608       OCEAN  STEAMSHIP  CO,   V.   SAVANNAH   LOCOMOTIVE   WORKS. 


OCEAN  STEAMSHIP  COMPANY  v.  SAVANNAH 
LOCOMOTIVE  WORKS. 

Supreme  Court  of  Georgia,  1909. 

[131  Ga.  831.1] 

Evans,  P.  J. 

The  principal  complaint  of  the  complaining  lumber  dealer  is  against 
the  system  of  booking  cotton  for  a  particular  vessel  in  advance  of  its 
sailing  day.  It  is  said  that  this  practice  results  in  accumulating  large 
quantities  of  lumber  and  cotton  at  the  port  of  Savannah  beyond  the 
immediate  carrying  capacity  of  the  steamship  company's  vessels,  and 
that  "booked"  cotton  is  transported  in  preference  to  lumber  tendered 
subsequent  to  the  booking  but  prior  to  the  arrival  and  receipt  of  the 
"booked"  cotton;  and  that  the  steamship  company  refuses  to  accord 
to  lumber  dealers  the  privilege  of  booking  their  commodity.  The  sys- 
tem of  "booking,"  as  explained  in  the  record,  is  the  practice  of  the 
steamship  company  to  make  specific  engagements  with  shippers  of 
cotton  for  a  reservation  of  space  for  cotton  to  be  shipped  on  a  particu- 
lar vessel,  in  advance  of  its  sailing  day.  If  the  steamship  company 
indifferently  extended  this  privilege  to  all  of  its  patrons  and  to  all 
commodities,  we  do  not  think  it  would  violate  any  duty  which  it  owed 
the  public.  The  basal  principle  of  the  requirement  of  the  common 
law  that  a  common  carrier  must  convey  the  goods  of  all  persons  offer- 
ing to  pay  his  hire,  unless  his  carriage  be  already  fiJl,  is  that  there 
should  be  no  unjust  preference  given  one  member  of  the  public  over 
another.  The  practice  of  making  specific  engagements  in  advance  of 
the  shipment,  if  the  privilege  is  indifferently  extended  to  all,  is  but 
another  form  of  acceptance  of  goods  tendered  in  the  order  of  their 
application.  The  same  impartiality  of  service  is  rendered  when  public 
notice  is  given  by  the  carrier  that  he  will  "book"  the  freight  of  all 
patrons,  and  reserves  space  for  the  goods  engaged  to  be  transported 
as  if  he  had  received  the  goods  of  the  shipper  in  the  order  of  their 
tender.  But  when  a  carrier  reserves  space  in  his  carriage  for  a  favored 
patron,  or  a  favored  commodity,  not  perishable  in  its  nature,  and  re- 
fuses to  reserve  space  for  another  patron  or  commodity,  he  fails  to 
afford  that  commonness  of  service  which  the  law  annexes  as  an  inci- 
dent to  his  business.  The  steamship  company  may  discontinue  to 
carry  any  particular  commodity  it  desires,  or  it  may  voluntarily  cease 
to  do  business  as  a  common  carrier  and  engage  in  the  business  of  a 

*  Only  the  concluding  paragraphs  of  the  opinion  are  printed.  —  Ed. 


OCEAN  STEAMSHIP  CO.   V.   SAVANNAH  LOCOMOTIVE  WORKS.       609 

special  carrier;  but  so  long  as  it  pursues  the  business  of  a  common 
carrier,  it  is  bound  to  render  to  the  public  the  service  which  the  law 
exacts  of  a  common  carrier. 

The  requirement  of  the  common  law  that  a  common  carrier  must 
receive  goods  offered  for  transportation  in  the  order  of  their  tender 
cannot,  on  principle,  be  affected  either  by  the  place  where  the  ship- 
ment originates,  or  by  the  ultimate  destination  of  the  goods.  There 
is  no  reason  why  the  steamship  company  should  prefer  freight  tendered 
in  a  car  from  one  forwarding  agency,  and  deny  freight  similarly  ten- 
dered by  another  forwarding  agency  or  shipper.  If  the  steamship 
company  desires  an  inland  carrier  to  issue  through  bills  of  lading,  it 
may  do  so  subject  to  its  obligations  to  receive  and  carry  freight  in  the 
order  of  its  tender.  The  mere  fact  that  a  particular  commodity  is 
destined  to  a  foreign  port  cannot  justify  a  carrier  in  giving  a  preference 
to  it  over  the  same  or  another  commodity  because  the  latter  may  be 
a  domestic  shipment.  It  is  urged  that  in  apportioning  its  space  to  the 
various  commodities,  according  to  the  volume  of  freight  at  the  port, 
no  discrimination  was  shown  by  the  steamship  company  against  lum- 
ber shipments  in  favor  of  cotton  or  other  articles  of  commerce.  Some 
of  the  reasons  advanced  are,  that  the  steamships  are  built  with  a  view 
to  the  packet  trade;  that  lumber  is  bulky,  and  cannot  be  as  expedi- 
tiously handled  as  cotton;  that  the  vessels  are  advertised  to  sail  on 
particular  days,  and  to  require  a  greater  percentage  of  lumber  to  be 
carried  than  was  carried  would  not  enable  the  vessels  to  observe  their 
sailing  dates;  that  there  is  a  congestion  of  freight,  and  a  larger  per- 
centage of  lumber  than  of  cotton  is  carried;  that  cotton  moves  only 
within  three  or  four  months  of  the  year,  whereas  lumber  moves  evenly 
throughout  the  year;  that  the  price  of  cotton  is  liable  to  fluctuation, 
while  that  of  lumber  is  more  constant;  that  cotton  is  the  great  staple 
crop  of  the  State  of  Georgia,  and  that  a  larger  number  of  the  public  is 
served  by  the  prompt  transportation  of  cotton  to  the  preference  of 
lumber.  With  respect  to  the  contention  that  if  the  steamship  company 
accepted  all  the  lumber  which  was  tendered  to  it,  its  vessels  could  not 
sail  at  the  advertised  times,  the  evidence  was  in  conflict.  As  pre- 
viously indicated,  the  steamship  company  is  under  no  duty  to  carry 
all  the  freight  of  the  port  of  Savannah;  so  that  the  main  question  on 
the  facts  is  whether  cotton  possesses  such  inherent  qualities  as  to  per- 
mit a  preference  to  be  given  to  that  commodity  over  all  other  articles 
which  the  steamship  company  customarily  carries.  We  fully  appre- 
ciate the  value  of  the  South's  great  staple  product,  and  are  aware  that 
for  years  the  slogan  has  been  that  "cotton  is  king."  But  the  great 
value  of  the  cotton  crop  and  the  importance  of  its  prompt  transporta- 
tion gives  to  that  staple  no  imperial  rights  over  the  other  products  of 


610     HOUSTON,   EAST  &  WEST  TEXAS  R.   R.   CO.   V.   UNITED  STATES. 

this  State.  It  is  not  perishable  in  its  nature,  and  it  will  not  be  con- 
tended that  its  fluctuation  in  price  is  so  violent  that  a  delay  in  trans- 
portation would  substantially  destroy  its  value.  On  the  whole,  after 
a  careful  consideration,  we  think  that  under  the  legal  principles  appli- 
cable to  the  facts  of  the  case  there  was  no  abuse  of  discretion  in  the 
grant  of  an  oc?  interim  injunction.  The  terms  of  the  injunction  did 
not  extend  to  matters  outside  of  the  pleadings,  nor  are  they  indefinite 
and  uncertain. 

Judgment  aflfirmed.     All  the  Justices  concur,  except  Fish,  C.  J., 
absent. 


HOUSTON,  EAST'&  WEST  TEXAS  RAILROAD  COMPANY 
^  V.  UNITED  STATES. 

Supreme  Court  of  the  United  States,  1914. 

[234  U.  S.  342.1] 

Mr.  Justice  Hughes  delivered  the  opinion  of  the  court. 

The  powers  conferred  by  the  act  are  not  thereby  limited  where  in- 
terstate commerce  itself  is  involved.  This  is  plainly  the  case  when 
the  Commission  finds  that  imjust  discrimination  against  interstate 
trade  arises  from  the  relation  of  intrastate  to  interstate  rates  as  main- 
tained by  a  carrier  subject  to  the  act.  Such  a  matter  is  one  with 
which  Congress  alone  is  competent  to  deal,  and,  in  view  of  the  aim 
of  the  act  and  the  comprehensive  terms  of  the  pro\nsions  against  un- 
just discrimination,  there  is  no  ground  for  holding  that  the  authority 
of  Congress  was  unexercised  and  that  the  subject  was  thus  left  without 
governmental  regulation.  It  is  urged  that  the  practical  construction 
of  the  statute  has  been  the  other  way.  But,  in  assaihng  the  order,  the 
appellants  ask  us  to  override  the  construction  which  has  been  given 
to  the  statute  by  the  authority  charged  with  its  execution,  and  it  can- 
not be  said  that  the  earlier  action  of  the  Commission  was  of  such  a 
controlling  character  as  to  preclude  it  from  giving  effect  to  the  law. 
The  Commission,  having  before  it  a  plain  case  of  unreasonable  discrim- 
ination on  the  part  of  interstate  carriers  against  interstate  trade,  care- 
fully examined  the  question  of  its  authority  and  decided  that  it  had 
the  power  to  make  this  remedial  order.  The  Commerce  Comt  sus- 
tained the  authority  of  the  Commission  and  it  is  clear  that  we  should 
not  reverse  the  decree  unless  the  law  has  been  misapplied.  This  we 
cannot  say;  on  the  contrary,  we  are  convinced  that  the  authority  of 
the  Commission  was  adequate. 

*  An  extract  only  is  printed.  —  Ed. 


IJ.LINOIS  CENTRAL  R.   R.   CO.   V.  HENDERSON  ELEVATOR  CO.       611 

The  further  objection  is  made  that  the  prohibition  of  section  3  is 
directed  against  unjust  discrimination  or  undue  preference  only  when 
it  arises  from  the  voluntary  act  of  the  carrier  and  does  not  relate  to 
acts  which  are  the  residt  of  conditions  wholly  beyond  its  control. 
East  Tennessee  &c.  Ry.  Co.  v.  Interstate  Conmaerce  Commission,  181 
U.  S.  1,  18.  The  reference  is  not  to  any  inherent  lack  of  control  aris- 
ing out  of  traffic  conditions,  but  to  the  requirements  of  the  local  au- 
thorities which  are  assumed  to  be  binding  upon  the  carriers.  The 
contention  is  thus  merely  a  repetition  in  another  form  of  the  argument 
that  the  Commission  exceeded  its  power;  for  it  would  not  be  contended 
that  local  rules  could-nullify  the  lawful  exercise  of  Federal  authority. 
In  the  view  that  the  Commission  was  entitled  to  make  the  order,  there 
is  no  longer  compulsion  upon  the  carriers  by  virtue  of  any  inconsistent 
local  requirement.  We  are  not  unmindful  of  the  gravity  of  the  ques- 
tion that  is  presented  when  State  and  Federal  views  conflict.  But  it 
was  recognized  at  the  beginning  that  the  Nation  could  not  prosper  if 
interstate  and  foreign  trade  were  governed  by  many  masters,  and, 
where  the  interests  of  the  freedom  of  interstate  commerce  are  in- 
volved, the  judgment  of  Congress  and  of  the  agencies  it  lawfully 
establishes  must  control. 

In  conclusion:  Reading  the  order  in  the  Hght  of  the  report  of  the 
Commission,  it  does  not  appear  that  the  Commission  attempted  to 
require  the  carriers  to  reduce  their  interstate  rates  out  of  Shreveport 
below  what  was  foimd  to  be  a  reasonable  charge  for  that  service. 


ILLINOIS  CENTRAL  RAILROAD  COMPANY  v. 
HENDERSON  ELEVATOR  COMPANY. 

Supreme  Court  of  the  United  States.    1913. 

[226  U.  S.  441.] 

Memorandum  opinion,  by  direction  of  the  court,  by  Mr.  Chief 
Justice  White. 

The  Henderson  Elevator  Company,  defendant  in  error,  as  plaintiff 
below  brought  this  action  to  recover  damages  from  the  Railroad  Com- 
pany, the  plaintiff  in  error,  because  of  a  loss  alleged  to  have  been 
sustained  by  an  erroneous  quotation  by  the  agent  of  the  Railroad  Com- 
pany of  the  freight  rate  on  com  shipped  in  interstate  commerce  from 
the  station  of  the  Railroad  Company  at  Henderson,  Kentucky.  A 
rate  of  10  cents  per  himdred  pounds  was  quoted  by  the  agent  when  in 
fact  the  rate  as  fixed  by  the  pubUshed  tariff  on  file  with  the  Interstate 


612      UNITED  STATES  EX  REL.  V.  UNION  STOCK  YARD  &  TRANSIT  CO. 

Commerce  Commission  and  eflFective  at  the  time  was  13)^  cents  per 
hundred  pounds.  On  the  trial  before  a  jury  the  court  instructed  that 
if  the  loss  sustained  by  the  plaintiff  "was  occasioned  and  brought 
about  by  defendant's  failure  to  have  posted  or  on  file  in  its  office  in 
Henderson,  Kentucky,  its  freight  tariff  rate  in  question  and  by  reason 
of  any  erroneous  quotation  of  defendant  of  its  freight  rate  from  and 
to  the  points  in  question,  of  which  plaintiff  complains,  .  .  ."  there 
should  be  a  verdict  for  the  plaintiff.  A  verdict  having  been  rendered 
for  the  plaintiff  in  accordance  with  this  instruction  and  the  judgment 
entered  thereon  having  been  subsequently  affirmed  by  the  Court  of 
Appeals  of  Kentucky  (138  Kentucky,  220),  this  writ  of  error  was 
sued  out. 

It  is  to  us  clear  that  the  action  of  the  court  below  in  affirming  the 
judgment  of  the  trial  court  and  the  reasons  upon  which  that  action 
was  based  were  in  conflict  with  the  rulings  of  this  court  interpreting 
and  applying  the  Act  to  Regulate  Commerce.  New  York  Cent.  R.  R. 
V.  United  States  (No.  2),  212  U.  S.  500,  504;  Texas  &  Pacific  R.  R. 
Co.  V.  Mugg,  202  U.  S.  242;  Gulf  Railroad  Co.  v.  Hefley,  158  U.  S.  98. 
That  the  failure  to  post  does  not  prevent  the  case  from  being  con- 
trolled by  the  settled  rule  established  by  the  cases  referred  to  is  now 
beyond  question.  Kansas  City  So.  Ry.  Co.  v.  Albers  Comm.  Co., 
223  U.  S.  573,  594  (a). 

Reversed. 


UNITED  STATES  ex  rel.  v.  UNION  STOCK  YARD  & 
TRANSIT  COMPANY. 

Supreme  Court  of  the  United  States,  1912. 

[226  U.  S.  286.1] 

Mr.  Justice  Day  delivered  the  opinion  of  the  Court. 

By  §  2  of  the  Act  to  Regulate  Commerce  the  carrier  is  guilty  of 
unjust  discrimination,  which  is  prohibited  and  declared  unlawful,  if 
by  any  rebate  or  other  device  it  charges  one  person  less  for  any  service 
rendered  in  the  transportation  of  property  than  it  does  another  for  a 
like  service.  The  Elkins  Act  makes  it  an  offense  for  any  person  or 
corporation  to  give  or  receive  any  rebate,  concession  or  discrimination 
in  respect  to  the  transportation  of  property  in  interstate  commerce 
whereby  any  such  property  shall  be  transported  at  a  rate  less  than 
that  named  in  the  published  tariff  or  whereby  any  other  advantage  is 
given  or  discrimination  is  practiced.    By  the  very  terms  of  the  con- 

*  Only  the  conclusion  of  the  case  is  printed.  —  Ed. 


UNITED  STATES  EX  REL.  V.  UNION  STOCK  YARD  &  TRANSIT  CO.     613 

tract  it  is  evident  that  the  interest  of  the  Stock  Yard  Company  and 
also  of  the  Junction  Company  is  in  the  profit  to  be  made  in  receiving 
and  delivering,  handling  and  caring  for  and  transporting  live  stock, 
shipments  of  which,  to  the  extent  stated,  are  made  in  interstate  com- 
merce. The  contract  provides  that  if  the  Pfselzers  construct  a  packing 
plant  adjacent  to  the  stock  yards  of  the  Stock  Yard  Company  they 
shall  receive  $50,000,  and  it  obligates  them  to  maintain  and  operate 
the  plant  for  a  period  of  fifteen  years  and  buy  and  use  in  their  slaugh- 
tering business  such  live  stock  only  as  moves  through  such  stock 
yards,  and  if  not  so  bought  to  pay  the  regular  charges  thereon  as  if 
the  same  had  moved  into  the  stock  yards  and  had  been  there  pur- 
chased by  them.  In  other  words,  this  plant  in  effect  may  pay  for  the 
services  of  the  Stock  Yard  Company,  up  to  the  sum  of  $50,000,  with 
the  bonus  given  to  the  Pfaelzers  for  the  location  of  their  plant  in  juxta- 
position to  the  stock  yards.  The  only  interest  which  the  Stock  Yard 
Company  has  in  Pfselzer  &  Sons'  interstate  business  is  compensation 
for  its  services  in  handling  their  freight  and  its  share  of  the  profits 
realized  by  the  Junction  Company  in  rendering  its  service.  Any  other 
company  with  which  it  has  made  no  contract  would  be  compelled 
to  pay  the  fiill  charge  for  the  services  rendered  without  any  rebate  or 
concession.  Another  company  might  have  a  contract  for  a  larger 
or  smaller  bonus,  and  thereby  receive  different  treatment.  Certainly  as 
to  the  company  which  receives  no  such  bonus  there  has  been  an  undue 
advantage  given  to  and  an  unlawful  discrimination  practiced  in  favor 
of  Pfaelzer  &  Sons.  If  these  companies  had  filed  their  tariffs,  as  we 
now  hold  they  should  have  filed  them,  they  would  have  been  subject 
to  the  restrictions  of  the  Elkins  Act  as  to  departures  from  published 
rates  —  and  we  must  consider  the  case  in  that  light  —  and  this  pref- 
erential treatment,  as  we  have  said,  would  have  been  in  violation  of 
that  act.  It  is  the  object  of  the  Interstate  Commerce  Law  and  the 
Elkins  Act  to  prevent  favoritism  by  any  means  or  device  whatsoever 
and  to  prohibit  practices  which  run  counter  to  the  purpose  of  the  act 
to  place  all  shippers  upon  equal  terms.  We  think  the  Commerce 
Court  should  have  enjoined  the  carrying  out  of  this  contract. 


614  THE  INTERMOUNTAIN  RATE  CASES. 


UNITED  STATES  v.  BALTIMORE  &  OHIO  RAILROAD  CO. 
Supreme  Court  of  the  United  States,  1913. 

[231  U.  S.  274.'] 

Mr.  Justice  Lurton  delivered  the  opinion  of  the  court. 

To  say  that  the  "allowance"  made  to  Arbuckle  Brothers  is  an  al- 
lowance for  lightering  their  own  sugar  across  the  river  is  to  only  half 
state  the  case.  This  so-called  allowance  is  not  only  for  such  lighterage 
service,  but  is  also  compensation  for  the  use  of  all  of  the  terminal 
properties,  docks,  warehouses,  tracks,  steam  Ughters,  car  floats  and 
every  instrumentahty  used  under  the  contract.  It  includes  the  serv- 
ices and  responsibility  of  Arbuckle  Brothers,  as  agents  for  the  several 
lessees  using  the  station,  and  their  staff  of  employ^  engaged  in  re- 
ceiving, delivering,  loading  and  unloading  freights  thus  received,  both 
incoming  and  outgoing.  As  the  measiu-e  of  compensation  is  the  ton- 
nage in  and  out  of  the  station  and  as  this  compensation  is  paid  by  the 
several  railroads  maintaining  the  station  in  proportion  to  the  tonnage 
which  they  severally  handle,  there  is  a  sense  in  which  it  is  in  part  an 
allowance  to  Arbuckle  Brothers  upon  their  own  shipments.  But  they 
receive  the  same  compensation  upon  the  tonnage  of  every  other  shipper 
through  that  station,  and  it  is  the  aggregate  of  the  compensation  which 
must  determine  the  reasonableness  of  the  allowance  when  we  come  to 
deal  with  it  as  an  allowance  to  them  for  services  or  instrumentalities 
furnished,  imder  section  15  of  the  Act  to  Regulate  Commerce. 


THE  INTERMOUNTAIN  RATE  CASES. 

Supreme  Court  op  the  United  States,  1914. 

[234  U.  S.  476.*] 

Chief  Justice  White  delivered  the  opinion  of  the  court. 

The  main  insistence  is  that  there  was  no  power  after  recognizing 
the  existence  of  competition  and  the  right  to  charge  a  lesser  rate  to 
the  competitive  point  than  to  intermediate  points  to  do  more  than  fix 
a  reasonable  rate  to  the  intermediate  points,  that  is  to  say,  that  under 
the  power  transferred  to  it  by  the  section  as  amended  the  Commission 
was  limited  to  ascertaining  the  existence  of  competition  and  to  author- 

*  Only  one  point  is  printed.  —  Ed. 

•  Only  an  extract  b  printed.  —  Ed. 


THE  INTERMOUNTAIN  RATE  CASES.  615 

izing  the  carrier  to  meet  it  without  any  authority  to  do  more  than 
exercise  its  general  powers  concerning  the  reasonableness  of  rates  at 
all  points.  But  this  proposition  is  directly  in  conflict  with  the  statute 
as  we  have  construed  it  and  with  the  plain  purpose  and  intent  mani- 
fested by  its  enactment.  To  uphold  the  proposition  it  would  be 
necessary  to  say  that  the  powers  which  were  essential  to  the  vivifica- 
tion  and  beneficial  realization  of  the  authority  transferred  had  evapo- 
rated in  the  process  of  transfer  and  hence  that  the  power  perished  as 
the  result  of  the  act  by  which  it  was  conferred.  As  the  prime  object 
of  the  transfer  was  to  vest  the  Commission  within  the  scope  of  the 
discretion  imposed  and  subject  in  the  nature  of  things  to  the  limita- 
tions arising  from  the  character  of  the  duty  exacted  and  flowing  from 
the  other  provisions  of  the  act  with  authority  to  consider  competitive 
conditions  and  their  relation  to  persons  and  places,  necessarily  there 
went  with  the  power  the  right  to  do  that  by  which  alone  it  could  be 
exerted,  and  therefore  a  consideration  of  the  one  and  the  other  and 
the  establishment  of  the  basis  by  percentages  was  within  the  power 
granted. 


This  book  is  DUE  on  the  last  date  stamped  below 


^19  26  193L 

fEB  *^     1932 

MAR  4     193b 
fiov  *>  9  1941 


Form  L-9-35m-8,'28 


UNIVERSITY  of  CALIFORNL* 

AT 

LdS  ANGELES 

IJBRARY 


/ 


